Masikip v. City of Pasig, 479 SCRA 391 (2006) : Lectures by Atty. Enrique Dela Cruz

Public Corporation 1
Lectures by Atty. Enrique Dela Cruz

Continuation of EMINENT DOMAIN.
Q: May an LGU expropriate a property for the benefit of a specific homeowners association?
No. Local government unit cannot use the power of eminent domain to expropriate a property merely for the
purpose of providing a sports and recreational facility to a small group of persons, such as those belonging to
homeowners association.
Where the taking by the State of private property is done for the benefit of a small community which seeks to
have its own sports and recreational facility, notwithstanding that there is such a recreational facility only a
short distance away, such taking cannot be considered to be for public use. Its expropriation is not valid.
Masikip v. City of Pasig, 479 SCRA 391 (2006)
Masikip case: The LGU decided to expropriate a private property as a multipurpose recreational
facility of association of the subdivision landowners. not a valid exercise of eminent domain. In
order of an eminent domain to be valid, it must redound to the benefit of the general welfare.
This is an invalid exercise of eminent domain because only a few, as compare to the general
welfare are benefited. LGU cannot use the power of eminent domain to expropriate a property
merely for the purpose of providing a sport recreational facility to a small group of person.
When we say public the law refers to the number of beneficiaries. It must redound to the
benefit of the general welfare.
Q: May an LGU expropriate a property to provide a right-of-way to a specific community?

In this case, a barangay sought to expropriate private lands to secure a right-of-way for residents of a
subdivision.
The SC declared that the failure of the subdivision owner to provide an access road does not shift the burden
to barangay itself.
To deprive the private persons of their property instead of compelling the subdivision owner to comply with its
obligation under the law is an abuse of the power of eminent domain and is patently illegal, which misuse of
public fund for a private purpose could amount to a possible case of malversation.
Barangay Sindalan, San Fernando, Pampanga v Court of Appeals, 518 SCRA 649 (2007)
Brgy. Sindalan case: private property where at the back is a squatter area. The owner of
the land closed it. The Barangay said, it is a right of way or encumbrance of property, so he
cant do it. Kung hinayaan mong dadaan daanan yung property mo, there is already a right
of way by emcumbrance. Pero dapat bayaran yung may-ari. So the barangay wanted to
expropriate. Is that a valid expropriation?
SC: No. expropriation is not valid if only few will be benefited. The owner of the
subdivision has the responsibility to provide a right of way. It is not the government who will
find a remedy for them.
POWER TO TAX
Q: What are the requisites of a valid tax ordinance?
1. The procedure applicable to local government ordinances in general should be observed. (Sec 187, LGC)
2. Public hearings are required before any local tax ordinance is enacted (Sec 187, LGC)
3. Within 10 days after their approval, publication in full for 3 consecutive days in a newspaper of general
circulation. In the absence of such newspaper in the province, city or municipality, then the ordinance may be
posted in at least two conspicuous and publicly accessible places (Sec 188 & 189, LGC)
Q: What is the effect if the tax ordinance was not published in full (only excerpts/summary)?
The requirement of publication in full for 3 consecutive days is mandatory for a tax ordinance to be valid.
The tax ordinance will be null and void if it fails to comply with such publication requirement. (Coca-Cola
v. City of Manila, GR No. 161893 June 27, 2006)
Coca cola case: it is explicitly prohibited by law under section 187. It shall be null and void if it fails
to comply with the publication requirement. Meaning, publication in full.
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Faculty of Civil Law -UST
Q: Who determines the legality or propriety of a local tax ordinance or revenue measure?
It is the Secretary of Justice who shall determine questions on the legality and constitutionality of ordinances
or revenue measures.
Such questions shall be raised on appeal within 30 days from the effectivity thereof to the SOJ who shall
render a decision within 60 days from the date of receipt of the appeal: Proided, however, That such appeal
shall not have the effect of suspending the effectivity of the ordinance and the accrual and payment of the tax
fee, or charge levied therein: Provided, finally, That within 30 days after receipt of the decision or the lapse of
the 60-day period without the SOJ acting upon the appeal, the aggrieved party may file appropriate
proceedings with a court of competent jurisdiction (RTC). (Sec 187 RA 7160)
Ordinary: declaratory relief.
Tax ordinances. You cannot go to court immediately. File an appeal to the Sec of Justice. For the
meantime, the ordinance continues to be in effect. An appeal will not stop nor suspend the
implementation of an ordinance.
Q: Can a dissatisfied tax payer go directly to court to question a tax ordinance?

No. The law requires that the dissatisfied taxpayer who questions the validity or legality of a tax
ordinance must file his appeal to the SOJ, within 30 days from effectivity thereof.
In case the Secretary decides the appeal, a period also of 30 days is allowed for an aggrieved party to go
court. But if the Secretary does not act thereon, after the lapse of 60days, a party could already proceed to
seek relief in court.
These three separate periods are clearly given for compliance as a prerequisite before seeking redress in a
competent court. Such statutory periods are set to prevent delays a swell as enhance the orderly and speedy
discharge of judicial functions.
For this reason the courts construe these provisions of statutes as mandatory. (CEPALCO v. City of
Cagayan de Oro, GR No 191761, November 14, 2012) The SC ruled that the procedure in sec 187 is
mandatory. So 30 days from the effectivity, you file an appeal. And if within 60 days the secretary
fails to act on the appeal, you can go directly to court.
LGU Power to Impose Franchise Tax

In this case, Smart contends that its telecenter in Davao City is exempt from payment of franchise tax to the
City, because its franchise (RA No 7294 [1992]) includes the clause in lieu of all taxes(9).
Smart alleges that the in lieu of all taxes clause in its franchise exempts it from all taxes, both local and
national.
The Local Government Code, which allowed the imposition of franchise tax by LGUs, took effect 2 months
ahead of Smarts franchise.
The SC ruled that the in lieu of all taxes clause applies only to national internal revenue taxes and not to
local taxes.
Smart Communications, INC v. City of Davao, 565 SCRA 237 (2008)
Smart case: congress enacted the franchise of smart. It has a provision which says, SMART will
pay 5% of its gross receipts annually to the national government as franchise tax in lieu of all taxes.
LGU Davao told SMART to pay them franchise tax as they were given the power to collect franchise
taxes. SMART argues that the Congress enacted a law wherein they shall pay franchise taxes in lieu
of all taxes. Therefore, they are not under the obligation to pay other taxes.
SC: in favor of LGU of Davao. When Congress enacted a law exempting you from taxes, you are
only exempt from national taxes. They cannot exempt you from local taxes because the power to
impose taxes is originally from the constitution and not from the Local government code. Art 10,
section 5 expressly provides that LGU can now generate their own sources of revenues. That is a
constitutional grant of power. Congress cannot grant exemption from local taxes.
The Local Government Code took effect on Jnaury 1, 1992. PLDTs legislative franchise was granted
sometime before 1992. Its franchise provides that PLDT will pay only 3% franchise tax to the BIR in lieu of all
taxes.
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The legislative franchise of Smart and Globe Telecoms were granted in 1998. Their legislative franchises
state that they will pay only 5% franchise tax to the BIR in lieu of all taxes.
Sample problem:
Q: The Province of Zamboanga del Norte passed an ordinance in 1997 that imposes a local franchise tax on all
telecommunications companies operating within the province.
The tax is 50% of 1% of the gross annual receipts of the preceding calendar year based on the incoming receipts,
or receipts realized, within its territorial jurisdiction.
Is the ordinance valid? Are PLDT, Smart and Globe liable to pay franchise taxes to the Province of Zamboanga?
YES. The Sc invoked the ruling in Davao case but limited the amount of taxes that the LGU can
imposed.
The ordinance is valid. The Local Government Code explicitly authorizes provincial governments
notwithstanding any law of other special law, to impose a tax on business enjoying a franchise at the rate of
50% of 1% based on the gross annual receipts during the preceding year within the province. (Sec 137,
LGC)
PLDT is liable to the franchise tax levied by the province of Zamboanga del Norte. The tax exemption
privileges on franchises granted before the passage of the Local Government Code are effectively
repealed by the latter law. (PLDT v. City of Davao, GR No 143867, August 22, 2002)
While Smart and Globes franchises were enacted after the Local Government Code, still Smart and Globe
are also liable to pay franchise tax to the province.
The in lieu of all taxes clause in a legislative franchise should categorically state that the exemption applies
to both local and national taxes otherwise, the exemption claimed should be strictly construed against the
taxpayer and liberally in favor of the taxing authority. (Smart Communications, Inc., v. The City of Davao,
GR No 155491, July 21, 2009)
Q: Does the LGU have power to adjust local tax rates?

Yes, provided that the adjustment of the tax rates be prescribed in an ordinance but should be oftener than
once every 5 years, and in no case shall such adjustment exceed 10% of the rates fixed under the LGC (Sec
191, LGC)
What if 10 years, it didnt increase? Can you increase 20% afterwards?

NO. Why 10%? Because inflation is at 10%.
Q: What are the taxes, fess and charges which a province or a city may levy?
1. Tax on transfer of real property ownership (Sec 135, LGC))
2. Tax on business of printing and publication (Sec 136, LGC)
3. Franchise Tax (Sec 137, LGC)
4. Tax on sand, gravel, and other quarry resources (Sec 138, LGC)
5. Professional Tax (Sec 139, LGC)
6. Amusement tax (Sec140, LGC)
7. Annual fixed tax for every delivery truck or van of manufacturer or producers, wholesalers of, dealers, or
retailer in certain products (Sec 141, LGC)
Q: What are the taxes that a municipality may impose under the LGC?
1. Tax on business (Sec 143, LGC)
2. Fees and charges on business and occupation Sec 147, LGC)
3. Fees for sealing and licensing of weights and measures (Sec 148, LGC)
4. Fishery rentals, fees and charges (Sec 149, LGC)
*municipalities have limited power to tax compared to provinces*
Q: Sample Problem
Mr Fermin, a resident of Bulacan, is a Certified Public Accountant-Lawyer engaged in the practice of his two
professions.
He has his main office in Makati City and maintains a branch office in Pasig City.
Mr Fermin pays his professional tax as a CPA in Makati City and his professional tax as a lawyer in Pasig
City.
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May Makati, where he has his main office, require him to pay his professional tax as a lawyer?
No. Makati where Mr. Fermin has his main office may not require him to pay his professional tax as a lawyer.
Mr. Fermin has the option of paying his professional tax as a lawyer in Pasig City where he practices law or
in Makati City where he maintains his principal office. (Sec 139 [b], LGC)
If you already paid in Makati, no other LGU can collect payment of taxes from you. even if you
have branches in their jurisdiction.
May the Province of Bulacan, where he has his residence and where he also practices his two professions,
go after him for the payment of his professional tax as a CPA and a lawyer?
NO. The situs of the professional tax is the city where the professional practices his profession or where he
maintains his principal office in case he practices his profession in several places.
The Province of Bulacan has no right to collect the professional tax from Mr. Fermin as the place of
residence of the taxpayer is not the proper situs in the collection of the professional tax. (Sec 129[b],
LGC)
For example, I am a resident of Baliwag Bulacan. I practice my profession in Makati where we

have our principal office. We have brances in cebu and davao. So where will I pay my
professional tax?
--- either in Makati, cebu, or davao. Once I pay in one of this cities, I may not be required to
pay on other cities. How about in baliwag bulacan? No, because that is my residence. Even if I
practice there, If I pay in Makati, I may not be ordered to pay.
Q: Has the province authority to impose taxes on sand, gravel and other quarry resources extracted on
private lands?
No. A province is not expressly authorized to do so. Such tax is a tax upon the performance, carrying on, or
exercise of an activity, hence an excise tax upon a n activity already being taxed under the NIRC. (Province
of Bulacan, et al v. CA, GR No 126232, November 27, 1998)
Q: What are the amusement places upon which provinces or cities cannot impose amusement taxes?
1.
Cockpits
2.
Cabarets
3.
Night or day clubs
4.
Boxing exhibitions
5.
Professional basketball games
6.
Jai- Alai
7.
Racetracks
Note: There can be no imposition of amusement taxes on the above amusement places since the
NIRC already imposes amusement taxes on them under Section 125 thereof. They are already taxed
by the BIR. Double taxation is prohibited.
Q: May LGUs collect amusement taxes on admission tickets to the Philippine Basketball
Association (PBA) games held in the LGU?
No. Professional basketball games are within the ambit of national taxation as it is presently being
taxed under the provisions of the NIRC.
Furthermore, the income from cession of streamers and advertising spaces is subject to amusement taxes
under the NRC because the definition under the Tax Code is broad enough to include the cession of
streamers and advertising spaces as the same includes all the receipts of the proprietor, lessee or operator
of the amusement place. (Philippine Basketball Association v CA, G.R. No. 119122, Aug 8, 2000)
Q: What are the common revenue raising powers of LGUs?
1. Fees, service or user charges LGUs may impose and collect such reasonable fees and charges for
services rendered. (Sec 153, LGC)
Fees must be proportionate with the one imposed by the LGU. If there is no regulation, you
cannot imposed one. It will be an extortion.
2.
Public utility charges may fix the rates for the operation of public utilities owned, operated and maintained
by them within their jurisdiction. (Sec 154, LGC) buses, jeep, telecommunications.
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3.
Toll fees or chargers The Sanggunian concerned may prescribe the terms and conditions and fix the
rates for the imposition of toll fees or charges for the use of any public road, pier, or wharf, waterway, bridge,
ferry or telecommunication system funded and construed by the local government unit concerned (Sec 155,
LGC)
If LGU constructed a road, they can collect toll fee; Provided that they financed such
construction.
Q: What are the common limitations on the taxing powers of the LGUs?
The exercise of the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the
levy of the following:
1. Taxes which are levied under the NIRC unless otherwise provided by the LGC.
2. Taxes, fess, and charges which are imposed under the Tariffs and Customs Code.
3. Taxes, fees and charges where the imposition of which contravenes existing governmental policies or which
are violative of the fundamental principles of taxation.
4. Taxes, fees and charges imposed under special laws.
Q: What should be the basis of business tax-gross receipts or gross revenue?
It must be based on gross receipts as the law is clear. Gross receipts include money or its equivalent
actually or constructively received in consideration of services rendered or articles, sold, exchanged or
leased, whether actual or constructive. Basta tinanggap, gross receipts.
To tax on gross revenue rather than gross receipts will amount to double taxation inasmuch as the revenue
or income for a taxable year includes gross receipts already reported during the previous year for which local
business taxes had already been paid. (Ericsson Telecommunications, Inc v. City of Pasig, etc., et. Al.,
GR No. 176667, Nov 22, 2007) binawasan na ng expenses. Net of expenses. Ne od other taxes. What we
use in the Local Government Code is GROSS RECEIPT.
Q: Are condominium corporations liable to pay business taxes under the Local Government Code?
As a rule, a city or municipality is authorized to impose a tax on business, which is defined under the LGC as
trade or commercial activity regularly engaged as a means of livelihood or with view of profit.
By its very nature, a condominium corporation is not engaged in business, and any profit it derives is merely
incidental, hence it may not be the subject of business taxes. (Yamane, etc. v. BA Lepanto Condominium
Corporation, GR No 152993, Oct 25, 2005)
They are subject to real property tax (but which they pass to their condo unit owners)
Q: What are the penalties for unpaid taxes, fees, or charges?

1. Surcharge of 25% on taxes, fees or charges not paid on time; and
2. Interest not exceeding 2% per month of the unpaid taxes, fees, or charges including surcharges until the
amount is fully paid. In no case shall the total interest exceed 36 months. (Sec 168, LGC)
Q: What is the period of assessment of local taxes?
GR: Local taxes, fees, or charges shall be assessed within 5 years from the date they became due. No
action for the collection of such taxes, fees, or charges, whether administrative or judicial, shall be instituted
after the expiration of such period. (prescriptive period for real property taxes)
XPN: In case of fraud or intent to evade the payment of taxes, fees, or charges, the same may be assessed
within 10 years from discovery of the fraud or intent to evade payment. (Sec 184 [a] and [b], LGC)
Q: What is the period of collection of local taxes?
Local taxes, fees, or charges may be collected within 5 years from the date of assessment by administrative
or judicial action. (Sec 194(c), LGC) after 5 years, action will be barred.
Q: When is the running f the prescriptive period suspended?
The running of the periods of prescription for the collection of local taxes shall be suspended for the time
during which:
1. The treasurer is legally Prevented from making the assessment of collection;
2. The taxpayer Requests for a reinvestigation and executes a waiver in writing before expiration of the period
within which to assess or collect; and
3. The taxpayer is Out of the Country or otherwise cannot be located. (Sec 195[d], LGC)
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SESSION AND QUORUM

First Day of Session
On the first regular session following the election of its members and within the sanggunian concerned
shall adopt or update its existing rules of procedure; (Article 103, IRR-LGC)
Internal Rules of Procedure
The task of drafting the internal rules may be delegated to a committee;
The proposed IRP can then be adopted by the sanggunian in a regular session; (article 103, IRR-LGC)
They are allowed to do within 90 days from the opening of the session.
Sanggunian Committees
The manner of selecting the Chairman and Members of various committees is through election. (Sec
50, LGC)
The majority can prepare a list and the sanggunian can vote to approve it, provided this is indicated
in the IRP. DILG Opinion No. 112-98 (09-07-1998)
Q:Who make internal rules?
A: It may be assigned to a committee, but it will be enacted and adopted by the

netire Sangunian in a regular session.
Q: Can they simply adopt the same internal rules?
A: Yes. Nothing can stop them. But the first order of business is to approve the
internal rules.
Q: How do you select committees?
A: Sec 50, LGC, they elect the chairman, and the chairman appoints the members of
the various committees. But usually the majority will already agree among
themselves who will chair the important committees. And they will simply prepare a
list, and the Sangunian can vote to approve the list and this will be a part of the
internal rules.
Ex-Officio members and the selection of committee chairs

Ex-officio- they were not voted by the people.
SK Chairman and Punong Barangays are non-partisan.

Thus, they cannot participate in the election of officers (minority and majority leaders and deputies
because this is mainly dependent on the majority and minority party affiliation in the sanggunian.
Thats why its not a part of the national or local election.
However, these ex-officio members are assured of the chairmanship of the corresponding sectors that
they are representing in the sanggunian, that is, the youth and barangay affairs, respectively. They
may also chair other regular committees.
The president of all brgy chairmen, (ABC Association of Barangay Captains) sa bayan,
lahat ng ABC ng mga bayan, mageelect ng chairman who will be a member of the
counselors. If became the president of all ABCs in the whole province, Board member.
Q: Can he be remove as a chairman of the barangay since he is already a counselor?
A: No. because the reason why he is sitting a counselor or as a board member is because
he is the present of the ABC. If you remove him as a baragay chairman, he is no longer
a member of ABC. If he is not an ABC, he cannot be elected as a president of the
federation. It is the law which dictates this.
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Same thing goes in the case of Chairman. 10% of the budget of the barangay. They are
considered non-partisan.
Ex-Officio members and the selection of committee chairs

An ex-officio member, president of the Liga ng mga Barangay, must chair the committee on baranagy
affairs and may chair another committee.
The creation of the committee on barangay affairs is mandatory.
The youth and sports development committee is a mandatory committee similar to those oter
committees enumerated in the LGC.
Can the Vice Mayor chair a committee?
NO.
The vice-mayor may chair a special committee created for a special purpose (DILG Opinions
Nos. 243-1992; 156-1994) but cannot head a regular committee. (DILG Opinions Nos. 243-1992;
29-1993)
reason: he is the presiding officer. How can he propose and at the same time rule on
his own proposal?
What is QUORUM?
A majority of all the members of the sanggunian who have been elected and qualified shall
constitute a quorum to transact official business (Sec 53, LGC)
What is meant by majority?
50% plus one of the entire membership of the sanggunian;
The closest number to more than one-half of the total membership of the sanggunian; (La Carlota
City vs Atty. Rex Rojo, GR No. 181367, April 24, 2012)
Is the Vice-Mayor included in the determination of quorum?
Yes. The Vice Mayor is a member of the Sanggunian.
He will thus be included in the total number of sanggunian members for purposes of determining
quorum. (DILG Opinion No. 28-2000, dated 17 April 2000, La Carlota City vs Atty. Rex Rojo, GR No.
181367, April 24, 2012)
Determining Quorum
19 members = 19/2 = 9.5 + 1 = 10.5
The quorum for a sanggunian with 19 members is therefore 10
Closest number to more than . What is the half of 19? 9.5. if more than half, it is already the
majority.
11 members = 11/2 + = 6.5

The quorum for a sanggunian with 11 members is therefore 6 (DILG Opinion No. 60-2004, dated 19
July 2004)
Vote Required in Sessions

Ordinary measures shall be decided by a simple majority of the members present at any meeting
there being a quorum.
(DILG Opinion Nos. 26-1996; 183-1994)
Simple majority: 50% + 1.
Two-Thirds (2/3) Vote Required

Extending Loans or entering into contracts;
Issuance of bonds or securities;
Authorizing the lease of public property;
Grant of franchises;
Creation of LGU liability or indebtedness.
Over-ride the veto of the Mayor;
Grant Tax exemptions;
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Levy of taxes;
Discipline/suspend a member of the sanggunian;
Opening or closing of roads;
Selection and transfer of govt site or offices;
Concurrence in the appointment of offices. (DILG Opinion 107-2003, dated 15 August 2003.)
Vice Mayor as Presiding Officer

Being the presiding officer of the council, a vice-mayor is considered a regular member of the local
legislative council concerned. (DILG Opinion 138, 342-1992; 81-1995)
But a Vice Mayor acting as mayor cannot preside over the council until the mayor re-assumes his/her
position since this will violate the local separation of powers. (Gamboa v Aguirre)
It will violate the local separation of powers. Usually it is the senior counselor
who will preside in the session. As the presiding officer, the Vice Mayor cannot
participate. He can only vote to break the time. It he wants to participate, he must
relinquish his chair as presiding officer.
Q: Who will take over in that case?
o A: to the majority floor leader or to any Sangunian member. He can choose. Not
necessarily the number 1.
Q: What if Vice Mayor is absent?
o A: temporary absent- the sangunian constituting a quoarum must elect between
themselves a temporary presiding officer who will sign ordinances.
If vice already dead, or became Mayor in his permanent capacity- number 1
Sangunian. Only if there is a permanent vacancy will the Vice Mayor be succeeded
by the Number 1 Sangunian.
Q: In the preceding facts, who will replace the member of the Sangunian who
succeeded the Vice Mayor?
o A: If the cause of vacancy is the number 1 counselor, and he belongs to a party,
such party will nominate, and the president will appoint the replacement (if
City).
The party will nominate and the Governor will appoint (if Municipality).
The Sanggunian barangay will nominate and the Mayor will appoint (if
Barangay)
If not a member of any party- the other members of the Sanggunian will nominate
and the President will appoint. The President will only appoint in case of Cities and
provinces. (see Section 45, LGC)
In such situation, the senior councilor may preside. DILG Opinion Nos. 142, 174-1994)
Presiding Officer as ember

As presiding offier, he can only vote to break a tie;
As a member, he may participate in the deliberations, vote, sponsor or co-author a bill or chair a
special committee.
He/ She may temporarily relinquish his/her chair as presiding officer to the majority floor leader or
to any sanggunian member. (DILG Opinion No. 65-995)
Temporary Presiding Officer
In case of temporary absence of the presiding officer, the members present and constituting a
quorum shall elect from among themselves a temporary presiding officer.
He shall certify within 10 days from the passage of ordinances / resolutions adopted by the
sanggunian in the session over which he temporarily presided. (Art 102-IRR, LGC)
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Permanent vacancy: Presiding Officer
In case of permanent vacancy in the position of vice mayor, the highest ranking sanggunian
member will succeed as vice mayor/ presiding officer.
The vacancy shall be filled by the other members of the sanggunian in accordance to their ranking.
(Section 44, LGC)
Permanent vacancy: Sanggunian
In case the permanent vacancy was caused by a member who belongs to a political party, the party
will nominate and the president will appoint the replacement;
If he does not belong to any political party, the other members of the sanggunian will nominate
and the president will appoint the replacement. Section 45, LGC
Sanggunian Secretary
The secretary to the sanggunian is a career public official with rank and salary equal to a head
of a department. (DILG Opinions Nos. 91, 253, 286 1992; 78 1995;)
A sanggunian secretary shall automatically continue in office despite the lapse of 3-year terms
of elective officials unless otherwise removed for cause. (DILG Opinion No. 176-1992)
Appointment of Sanggunian Secertary
It is the vice mayor, not the mayor, who is authorized to appoint the secretary to the sanggunian
(CSC En Banc Resolutions Nos. 94-7153 December 29, 1994, 92-111 August 20, 1992; DILG
Opinions Nos. 348-1992; 7, 155. 236, 245 1993; 85-1995) with the concurrence of the
sanggunian concerned. (DILG Opinion No. 8-1995)
Permanent employee until she gets 65. She is a department head with own budget.
Same as a rank of a department head.
Temporary Vacancy Mayor

A mayor may designate in writing an officer-in-charge (e.g. councilor, any appointive official or
employee except casual job order or contractor) to assume the office but only for three (3)
days.
When we say Mayor here, it applies to any chief executive, i.e: City Mayor, Municipal
Mayor, except Barangay.
On the 4th day, the vie-mayor assumes the post regardless of the nature of the absence of the
mayor. (DILG Opinions Nos. 22, 30, 871-A-1993; 52, 53-1994)
Henceforth, the designation of the officer-in-charge ceases. (DILG Opinion 87-A-1993)
Powers: Acting Mayor

A vice-mayor acting as mayor possesses the powers incidental to the office, including the authority to
solemnize marriages, during the period of temporary incapacity (DILG Opinion No. 25-1994)
An acting mayor can exercise the power to appoint and to discipline only after the lapse of 30
working days from the time the mayor is temporarily incapacitated. (CSC En Banc Resolution
Nos. 94-0959 Feruary 15, 1994, 94-6892 December 20, 1994)
Acting Mayor CANNOT:
Administer oaths (DILG Opinion No 136-1994)
The power to approve or disapprove ordinances and resolutions enacted by the council (DILG Opinion
No. 149-1993);
Preside over council sessions (DILG Opinions Nos. 270-1992; 142, 174-1994);
Appoint, suspend or dismiss employees within 30 days except when the cause of the temporary
incapacity of the mayor is suspension for more than 30 days.
Is the signature of VM on an enacted ordinance necessary?
No. Section 469 (c)(3) of the LGC provides that enacted ordinances must be certified by the
presiding officer before they are submitted to the mayor for his approval.
However, any presiding officer may certify an enacted ordinance.(DILG Opinion No. 16-2005,
dated 15 Feb 2005)
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May an ordinance become valid even without the signature of the mayor?
YES. If he fails to act on an ordinance submitted to him for his review within 10 days from his
receipt thereof;
When the sanggunian overrides the veto of the mayor by 2/3 vote. (DILG Opinion No. 22-2003,
dated 27 Feb 2003)
OVERSIGHT
Legislative Oversight
SEC. 56, Review of Ordinances by the Sangguniang Panlalawigan (a) Within three (3) days after
approval the secretary to the Sanggunian panlungsod or Sangguniang bayan shall forward to the
Sangguniang panlalawigan for review, copies of approved ordinances and the resolutions approving
the local development plans and public investment programs formulated by the local development
councils.
(b) Within thirty (30) days after receipt of copies of such ordinances and resolutions the
Sangguniang panlalawigan shall examine the documents or transmit them to the provincial attorney, or
if there be none, to the provincial prosecuter for prompt examination
(c) If the Sangguniang panlalawigan finds that such an ordinance or resolution is beyond the power
conferred upon the Sangguniang panlungsod or Sangguniang bayan concerned, it shall declare such
ordinance or resolution invalid in whole or in part. The snagguniang panlalawigan shall enter its action
in the minutes and shall advise the corresponding city or municipal authorities of the action it has
taken.
(d) If no action has been taken by the Sangguniang panlalawigan within thirty (30) days after
submission of such an ordinance or resolution, the same shall be presumed consistent with
law and therefore valid.
SEC. 57, Review of Ordinances by the Sangguniang Panlungsod or Bayan (a) Within ten (10) days
after its enactment the Sangguniang barangay shall furnish copies of all barangay ordinances to the
Sangguniang panlungsod or Sangguniang bayan concerned for review as to whether the ordinance is
consistent with law and city or municipal ordinances.
(b) If the Sangguniang panlungsod or Sangguniang bayan, as the case may be, fails to take
action on barangay ordinances within thirty (30) days from receipt thereof, the same shall be
deemed approved.
(c) If the Sangguniang panlungsod or Sangguniang bayan, as the case may be, finds the barangay
ordinances inconsistent with law or city or municipal ordinances, the Sanggunian concerned shall,
within thirty (30) days from receipt thereof, return the same with its comments and
recommendations to the Sangguniang barangay concerned for adjustment, amendment, or
modification, in which case, the effectivity of the barangay ordiance is suspended until such
time as the revision called for is effected.
May the Sanggunian declare a local ordinance under review as void and illegal?
NO.
The only ground upon which a provincial board may declare any municipal resolution, ordinance, or
order invalid is when such resolution, ordinance, or order is beyond the powers conferred upon the
Sanggunian making the same.
Absolutely no other ground is recognized by the law.
Not even the DILG can order an ordinance invalid. Only the Court has this
jurisdiction. What the Sangunian can do is to determine if it is within or beyond
the power of the SL.
Moday v. CA, Feb 20, 1997, DILG Opinion No. 3-2005(January 21, 2005)
May the Sanggunian exceed the 30-day period of review because of time spent in referral to its
committee or legal office?
NO.
The Sanggunian is required to take action on the ordinance on review within thirty (30) days after
its submission.
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The phrase take action should be construed as either approval or disapproval of the ordinance and
not just any other action of the reviewing Sanggunian such as referral to a committee. 30 days only
means approve or disapprove. It does not include the referral.
After the lapse of such period, and no official and/or formal document, such as a resolution, was
issued by the Sanggunian, it can be validly stated that the Sanggunian failed to act within thirty (30)
days and the ordinance or resolution under review can be presumed consistent with law and therefore
valid. [DILG Opinion No. 19-2009(April 28, 2009)][DILG Opinion No. 62-2012(November 7, 2012)]
BUDGET
it is an ordinance but a special kind of ordinance.
Review of Appropriation Ordinance

SEC. 327 Review of Appropriation Ordinances of Component Cities and Municipalities The
Sangguniang panlalawigan shall review the ordinance authorizing annual or supplemental
appropriations of municipalities in the same manner and within the same period prescribed for the
review of other ordinances.
If within ninety (90) days within receipt of copies of such ordinance, the Sangguniang
panlalawigan takes no action thereon, the same shall be deemed to have been reviewed in
accordance with law and shall continue to be in full force and effect.
SEC. 333 Review of the Barangay Budget (a) Within ten (10) days from its approval, copies of
the barangay budget shall be furnished the Sangguniang panlungsod or the Sangguniang bayan, as
the case may be.
If within sixty (60) days after the receipt of the ordinance, the Sanggunian concerned takes no
action thereon, the same shall continue to be in full force and effect.
(b) Within the same 60-day period, the Sangguniang panlungsod or Sangguniang bayan
concerned shall return the barangay budget to the punong barangay within the advice of action
thereon for proper adjustments, in which event, the barangay shall operate on the ordinance
authorizing annual appropriations of the preceding fiscal year until such time that the new ordinance
authorizing annual appropriations shall have met the objections raised.
Upon receipt of such advice, the barangay treasurer or the city or municipal treasurer who has
custody of the funds shall not make further disbursement from any item of appropriation
declared inoperative, disallowed, or reduced.
The budget is still in effect even during the pendency of the review. It only upon a
written advice from the higher Sangunain to the lower Sangunian will the budget
be stayed or suspended.
Who prepares the budget?

The Local Development Council (LDC) prepares the Local Development Plan (LDP) (Section 109,
LGC) LDP composed of all members of the baragay (in case of a branagay)
department heads, representative of the mayor, representative of the sangunian. It

will contain the wishlist. Even if there is no fund for such project, if they wish to do it,
they may include it in the LDP. The proposed LDP will be forwarded to the
Sanggunian for approval. And the mayor will sign. If he doesnt want, he may veto
it. After approval, the finance committee will now prepare a budget and how limit
such budget, known as the budget ordinance.
The Sanggunian will then approve or disapprove the LDP thru a Resolution (Section 114, LGC)
The LDP will then be submitted to the mayor, who may approve or veto the same (Section 55, LGC)
The approved LDP will then be submitted to the Local Finance Committee (LFC) for budget
preparation (Art 410, IRR, LGC)
The proposed budget will be submitted by the local chief executive to the Sanggunian for enactment
into an ordinance. (Section 316, LGC) (DILG Opinion No. 137-2003)
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Can the Sanggunian reduce the proposed budget?
Article 415 of the IRR states that: the local Sanggunian may not increase the proposed amount in the
executive budget nor include new items except to provide for statutory and contractual obligations but
in no case shall it exceed the total appropriations in the executive budget.
Considering that the only prohibition is against any increase, the Sanggunian may reduce the
executive budget proposed by the LCE, provided, however, the requirements as well as the general
limitations in the use of govt funds provided for under Sections 324 and 325 of the Code are complied
with.
Is there any penalty for an LCE who fails to prepare and submit the annual budget on time?
Yes. Pursuant to Sec. 318 of R.A. No. 7160, an LCE who fails to submit the budget on or before
October 16 of the current year shall be subject to such criminal and administrative penalties as may
be provided by the Local Government Code and other applicable laws.
What is the period for enactment of the annual budget (Re-enacted Budget)
Under Section 323 of the LGC, if the Sanggunian fails to enact the annual budget after ninety (90)
days from the beginning of the fiscal year, the ordinance authorizing the appropriations of the
preceding year shall be deemed re-enacted and shall remain in force and effect until the ordinance
authorizing the proposed appropriations is passed by the Sanggunian concerned.
However, only the annual appropriations for salaries and wages of existing positions, statutory and
contractual obligations, and essential operating expenses authorized in the annual and supplemental
budgets for the preceding year shall be deemed re-enacted and disbursement of funds shall be in
accordance therewith.
Effectivity of the Budget
Section 320 of the LGC, provides that:
The ordinance enacting the annual budget shall take effect on the ensuing calendar year.
An ordinance enacting a supplemental budget, however, shall take effect upon its approval or on the
date fixed therein.
The review of the budget by the sangguniang panlalawigan is not a requisite for validity or effectivity.
(DILG Opinion No. 90-2000 dated 21 August 2000)
Supplemental Budget
No ordinance providing for a supplemental budget shall be enacted except:
o (a) when supported by funds actually available as certified by the local treasurer, which shall
refer to the amount of money actually collected during a given fiscal year that is over and
above the realized estimated income of that year; or
o in times of public calamity by way of budgetary realignment to set aside appropriations for the
purchase of supplies and materials or the payment of services which are exceptionally urgent
or absolutely indispensable to prevent imminent danger to, or loss of, life or property, in the
jurisdiction of the LGU or in other areas declared in a state of calamity by the President (Art
417, IRR).
Intelligence Fund
Section 325(h) of R.A. 7160 provides in part that ... annual appropriations for discretionary
purposes of the local chief executive shall not exceed two percent (2%) of the actual receipts
derived from basic real property tax in the next preceeding calendar year.
Pursuant to DILG Memorandum Circular No. 99-65 to determine the amount to be utilized for
intelligence and confidential purposes, it shall be based on the: (a) 30% of the peace and order
allocation, or 3% of the annual appropriations, whichever is lower.
May the Sanggunian modify or reduce a local budget ordinance under review?
YES.
Expressly included in the Sanggunians power to review the local budget ordinance of a lower LGU is
the clipping power to disallow or reduce accordingly and even declare the ordinance inoperative in
part or in its entirety if the appropriations are found to be excess of the amounts prescribed or if it does
not comply with budgetary requirements and limitations under the law.
DILG Opinion No. 101-1995 (August 31, 1995)
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What are the grounds or questions that the reviewing Sanggunian can use to assail a local budget
under review?
Section 325, LGC
The total appropriations, whether annual or supplemental, for personal services of a local government
unit for one (1) fiscal year shall not exceed forty-five percent (45%) in the case of first to third class
provinces, cities and municipalities, and fifty-five percent (55%) in the case of fourth class or lower, of
the total annual income from regular sources realized in the next preceding fiscal year.
The appropriations for salaries, wages, representation and transportation allowances of officials and
employees of the public utilities and economic enterprises owned, operated, and maintained by the
local government unit concerned shall not be included in the annual budget or in the computation of
the maximum amount for personal services.
No official or employee shall be entitled to a salary rate higher than the maximum fixed for his position
or other positions of equivalent rank by applicable laws or rules and regulations issued thereunder;
The annual appropriations for discretionary purposes of the local chief executive shall not
exceed two percent (2%) of the actual receipts derived from basic real property tax in the next
preceding calendar year.
Section 324, LGC
The aggregate amount appropriated shall not exceed the estimates of income;
Full provision shall be made for all statutory and contractual obligations of the local government unit
concerned: Provided, however, That the amount of appropriations for debt servicing shall not
exceed twenty percent (20%) of the regular income of the local government unit concerned;
Five percent (5%) of the estimated revenue from regular sources shall be set aside as an annual
lump sum appropriation for unforeseen expenditures arising from the occurrence of calamities.
What are the restrictions on disbursement of Funds?
Section 335. Prohibitions Against Expenditures for Religious or Private Purposes. - No public money
or property shall be appropriated or applied for religious or private purposes.
Section 337. Restriction Upon Limit of Disbursements. - Disbursements in accordance with
appropriations in the approved annual budget may be made from any local fund in the custody of the
treasurer, but the total disbursements from any local fund shall in no case exceed fifty percent
(50%) of the uncollected estimated revenue accruing to such local fund in addition to the actual
collections: Provided, however, That no cash overdraft in any local fund shall be incurred at the end of
the fiscal year.
Section 338. Prohibitions Against Advance Payments. - No money shall be paid on account of any
contract under which no services have been rendered or goods delivered.
Section 339. Cash Advances. - No cash advance shall be granted to any local official or employee,
elective or appointive, unless made in accordance with the rules and regulations as the Commission
on Audit may prescribe.
Section 343. Prohibition Against Expenses for Reception and Entertainment. - No money shall
be appropriated, used, or paid for entertainment or reception except to the extent of the representation
allowances authorized by law or for the reception of visiting dignitaries of foreign governments or
foreign missions, or when expressly authorized by the President in specific cases.
Section 344. Certification, and Approval of, Vouchers. - No money shall be disbursed unless the
local budget officer certifies to the existence of appropriation that has been legally made for
the purpose, the local accountant has obligated said appropriation, and the local treasurer
certifies to the availability of funds for the purpose.
o Vouchers and payrolls shall be certified to and approved by the head of the department or
office who has administrative control of the fund concerned, as to validity, propriety, and
legality of the claim involved.
How can the Sanggunian monitor that the funds are properly disbursed?
SEC. 346. Disbursements of Local Funds and Statement of Accounts Disbursement shall be
made in accordance with the ordinance authorizing the annual or supplemental appropriations without
the prior approval of the Sanggunian concerned.
Within thirty (30) days after the close of each month, the local accountant shall furnish the
Sanggunian with such financial statements as may be prescribed by the Commission on Auditing
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the case of the year-end statement of accounts, the period shall be sixty (60) days after the thirty-first
(31st) of December.
Can the local chief executive declare savings and transfer it to augment other expenses (DAP)?
NO.
SEC. 336. Use of Appropriated Funds and Savings. Funds shall be available exclusively for the
specific purpose for which they have been appropriated.
No ordinance shall be passed authorizing any transfer of appropriations from one item to
another.
However, the local chief executive or the presiding officer of the Sanggunian concerned may, by
ordinance, be authorized to augment any item in the approved annual budget for their respective
offices from savings in other items within the same expense class of their respective appropriations.
Who will be held liable for improper disbursement of funds?
SEC. 340. Persons accountable for Local Government Funds Any officers of the local
government unit whose duty permits or requires the possession or custody of local government funds
shall be accountable and responsible for the safekeeping thereof in conformity with the provision of
this title.
Other local officers who, though not accountable by the nature of their duties, may likewise be
similarly held accountable and responsible for local government funds through their
participation in the use or application thereof. (emphasis supplied)
Who will be held liable for improper disbursement of funds?
SEC. 342. Liability for Acts Done Upon Direction of Superior Officer, or Upon Participation of
Other Department Heads or Officers of Equivalent Rank
The superior officer directing, or the department head participating in such illegal or improper
use or application or deposit of government funds or property, shall be jointly and severally
liable with the local treasurer, accountant, budget officer, or other accountable officer for the
sum or property so illegally or improperly used, applied or deposited.
OVERSIGHT ON CONTRACTS
What are the conditions under which a local executive may enter into a contract in behalf of his
government unit?
a. The local government unit must have the power to enter into the particular contract.
b. Pursuant to Section 22(c) of the Local Government Code, there must be a prior authorization by the
Sanggunian concerned.
c. If the contract involves the expenditure of public funds, there must be an appropriation therefore and a
certificate of availability of funds by the treasurer of the local government unit.
d. The contract must conform with the formal requisites of written contracts prescribed by law.
What documents must support the contract of sale entered by the LGU?
Resolution of the sanggunian authorizing the local chief executive to enter into a contract of sale. The
resolution shall specify the terms and conditions to be embodied in the contract;
Ordinance appropriating the amount specified in the contract
Certification of the local treasurer as to availability of funds together with a statement that such fund
shall not be disbursed or spent for any purpose other than to pay for the purchase of the property
involved. (Jesus is Lord Christian School Foundation, Inc vs Municipality of Pasig, GR No. 152230,
August 9, 2005)
Can the Annual Budget be used as continuing authority for the LCE to enter into contracts without
prior authorization from the Sanggunian?
NO.
Sec. 22, of the LGC, states; Unless otherwise provided in this Code, no contract may be entered
into by the local chief executive in behalf of the local government unit without prior
authorization by the Sanggunian concerned.
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Should the appropriation ordinance, however, already contain in sufficient detail the project and cost of
a capital outlay such that all that the local chief executive needs to do after undergoing the requisite
public bidding is to execute the contract, no further authorization is required, the appropriation
ordinance already being sufficient.
Quisumbing vs. Gov. Garcia, G.R. No. 175527, Dec. 8, 2008
Basic Rules on Government Contracts

The absence of any of the three legal requirements an appropriation law, a certificate of
appropriation and fund availability, and public bidding renders any contract entered into by the
government as void from the beginning.
Section 46, 47 and 49, Chapter 8, Subtitle B, Title I, Book V of the Administrative Code of 1987.
First Requisite: Appropriation Law
The Administrative Code of 1987 expressly prohibits the entering into contracts involving the
expenditure of public funds unless two (2) prior requirements are satisfied.
First, there must be an appropriation law authorizing the expenditure required in the contract.
Second, there must be attached to the contract a certification by the proper accounting official and
auditor that funds have been appropriated by law and such funds are available.
Failure to comply with any of these two requirements renders the contract void.
Section 46, Chapter 8, Subtitle B, Title I, Book V of the Administrative Code of 1987 provides:
SECTION 46. Appropriation Before Entering into Contract (1) No contract involving the
expenditure of public funds shall be entered into unless there is an appropriation therefore, the
unexpended balance of which, free of other obligations, is sufficient to cover the proposed
expenditure;...
Second Requisite: Availability of Funds
SECTION 47. Certificate Showing Appropriation to Meet Contract no contract involving the
expenditure of public funds by any government agency shall be entered into or authorized unless the
proper accounting official of the agency concerned shall have certified to the officer entering into
the obligation that funds have been duly appropriated for the purpose and that the amount necessary
to cover the proposed contract for the current calendar year is available for the expenditure on
account thereof...
Effect of Non Compliance
SECTION 48. Void Contract and Liability of Officer Any contract entered into contrary to the
requirements of the two (2) immediately preceding sections shall be void, and the officer or
officers entering into the contract shall be liable to the Government or other contracting party for any
consequent damage to the same extent as if the transaction had been wholly between private parties.
Is Public bidding required when LGUs enter into contracts?
Yes, in the award of government contracts, the law requires competitive public bidding. It is aimed to
protect the public interest by giving the public the best possible advantages thru open competition. It is
a mechanism that enables the government agency to avoid or preclude anomalies in the execution of
public contracts. (Garcia vs. Burgos, G.R. No. 124130, June 29, 1998)
Can a municipal contract be ratified?
No, when the local chief executive enters into contracts, he needs prior authorization or authority from
the Sanggunian and not retification. (Verfara vs. Ombudsman, G.R. No. 174567, March 12, 2009)
OVERSIGHT ON APPOINTMENTS
What is the period for the Sanggunian to concur on appointments?
When an appointment is presented before the Sanggunian for its concurrence, that Sanggunian is
mandated to act thereon within fifteen(15) days from the date of its submission (Sec 463, lbid)
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The word act in said provision means either expressly to concur or not to concur on the appointment
upon determining whether or not the appointee possesses all the qualifications and none of the
disqualifications for the said office (DILG Opinion No. 40, s 2000)
For as long as the appointee possesses the required qualifications and none of the disqualifications, it
is a ministerial duty which the law enjoins on the part of the Sangguniang Panlalawigan to concur your
appointment
When is the appointment deemed effective?

Appointment to a public office becomes effective only once it is completed.
The Supreme Court, in the case of Atty. David B. Corpuz vs. Court of Appeals, et. Al., G.R. No.
123989 dated January 26, 1998, held that where the assent or confirmation of some other offices or
body is required, the appointment may be complete only when such assent or confirmation is obtained.
Hiring of Consultants
Can the Mayor hire consultants for the LGU without prior authorization by the Sanggunian?
No. The hiring of a consultant requires the execution of a consultancy contract or MOA with a
prescribed payment for the contracted services by the LGU.
Under Section 22 (c) of the LGC, the mayor can neither enter into this contract nor hire consultants
without prior authorization from the Sanggunian. (DILG Opinion No. 40-2003 dated March 2003)
Can the Vice Mayor hire consultants?
Yes. But he must first be authorized by the Sanggunian to enter into the Consultancy contract (Section
22-C, LGC).
Under Section 456 of R.A. 7160, there is no inherent authority on the part of the city vice-mayor to
enter into contracts on behalf of the local government unit, unlike that provided for the city mayor.
Thus, the authority of the vice-mayor to enter into contracts on behalf of the city is strictly
circumscribed by the ordinance granting it.
The ordinance is valid only for a specific period and with a specific contract. (ARNORD D. VICENCIO
VS. HON. REYNALDO A. VILLAR, ET.AL., G.R. NO. 182069, JULY 3, 2012)
May LGUs hire elected officials or government employees as consultants?
YES. Pursuant to Section 2(a), Rule 11 of CSC Memo Circular No. 40 dated 14 December 1998,
consultancy services are not considered government services and no employer-employee
relationship exists between the LGU and the consultant.
Thus, the position of the consultant cannot be considered as an appointment or designation in
any capacity to a public office or position. Also agreement cannot be considered double or
additional compensation since no employer-employee relationship exists. (DILG Opinion No. 26
s, 2001 dated 16 April 2001)
May LGUs hire private counsel?
In the case of Ramos vs. CA (108 SCRA 728), the Supreme Court declared that a private lawyer
cannot represent a local government unit even if the sevices rendered was gratis.
May the Mayor veto a decision of the Sanggunian?
The decision of the Sanggunian to suspend a brgy. Official IS NOT A LEGISLATIVE ACT.
THEREFORE IT IS NOT SUBJECT TO THE VETO POWER OF THE MAYOR.
The power to discipline brgy. Officials are an exercise of quasi-judicial power that is exclusive to the
Sanggunian. (DILG Opinion No. 19-2002; Opinion No. 9-2004)
Is appeal available in administrative disciplinary cases?

It depends on the penalty imposed.
o Appeal is available if the penalty is:
Demotion, Dismissal, or Suspension for more than 30 days or fine equivalent to more than 30 day
salary (P.D. 807. Sec. 37 par [a]).
o Appeal is not available if the penalty is:
Suspension for not more than 30 days.
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Fine not more than 30 day salary.

Censure, Reprimand; or Admonition
Note: In the second case, the decision becomes final and executor by express provision of law.
Motion for Reconsideration

A brgy. Official suspended by the Sanggunian my file a motion for reconsideration but this will not
stay the execution of the suspension.
The decision of the Sanggunian in disciplinary cases is immediately executor even pending appeal.
But the reviewing authority may issue a stay order pursuant to its review authority.
The decision of the Sangguniang bayan may be appealed to the Sangguniang panlalawigan. (Section
66, LGC)
Stay of Execution
The first sentence of Section 68 merely provides that an appeal shall not prevent a decision from
becoming final or executor.
As worded, there is room to construe said provision as giving discretion to the reviewing officials to
stay the execution of the appealed decision.
There is nothing to infer therefrom that the reviewing officials are deprived of the authority to order a
stay of the appealed order.
The execution of decisions pending appeal is procedural and in the absence of a clear legislative
intent to remove from the reviewing officials the authority to order a stay of execution, such authority
can be provided in the rules and regulations governing the appeals of elective officials in administrative
cases.
Berces v. Guingona, G.R. No. 112099, February 21, 1995.
QUASI-JUDICIAL POWERS OF THE SANGGUNIAN

Where should an administrative complaint against elective officials be filed?
A verified complaint shall be filed with the following:
o Office of the President against elective official of provinces, HUC, ICC, Component cities.
o Sangguniang Panlalawigan elective officials of municipalities; and
o Sangguniang Panglungsod or Bayan elective barangay officials. (Sec. 61, LGC)
What are the grounds to discipline local officials?
1. Disloyalty to the Republic;
2. Culpable Violation of the Constitution;
3. Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
4. Commission of any offense involving moral turpitude or an offense punishable by at least prison
mayor;
5. Abuse of Authority;
6. Unauthorized Absences for the 15 consecutive days (3 consecutive sessions);
7. Acquisition of foreign citizenship or status of an immigrant in another country;
8. Such other ground. (Section 60, LGC)
Power to Discipline
A Sanggunian may only discipline erring subordinate officials.
A council cannot, by mere resolution, remove a local chief executive. Such power is exercised by
higher council. (DILG Opinions Nos. 281-1993; 38-1995)
A vice-mayor despite his/her unauthorized absences, remains to be vice-mayor and may not be
disciplined by his own Sanggunian. (DILG Opinion No. 179-1994)
Contempt powers of the Sanggunian
A Sanggunian cannot cite in contempt a person who fails to appear before it since there is no law
which authorizes local legislative councils from doing so. (DILG Opinion No. 3-1994)
Neither can it issue compulsory processes. Thus, a local legislative council cannot compel attendance
in committee hearings. (DILG Opinion No. 212-1993)
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How should the Sanggunian try disciplinary cases?
Cases involving barangay officials must be commenced by filing a formal notarized complaint before
the Sanggunian.
The appropriate committee will conduct a preliminary study and its report will then be heard by the
whole Sanggunian.
The Sanggunian will the conduct hearings.
A decision will then be prepared containing a summary of the facts and the issues resolved. (Malinao
vs. Reyes G.R. No. 117618 March 29, 1996)
Procedures in disciplinary cases?
Within 7 days after the complaint is filed, the Saggunian shall send a Notice to the respondent
requiring him to submit his answer within 15 days from his receipt of the Notice;
The Sanggunian will then commence the investigation within 10 days from receipt of the respondents
answer. (Section 62. LGC)
Abuse of Authority as a ground for disciplinary action
Local government officials who pass ordinances or resolutions which are contrary to law may be
disciplined for abuse of authority. (DILG Opinion No. 90-1994)
Local officials are presumed to be knowledgeable of existing laws. (OGCC Opinion No. 093-1996)
Incurring excessive cash advances constitutes abuse of authority and/or dishonesty. (DILG Opinion
No. 60-1994)
Gross Negligence as a ground for disciplinary action
Refusal of a mayor to honor and enforce ordinance duly enacted by the Sanggunian is gross
negligence. (DILG Opinion No. 181-1994)
Failure to attend council sessions due to members drinking sprees amounts to gross negligence.
(DILG Opinion No. 157-1994)
The members of the Sangguniang panlalawigan may be disciplined if they fail to act, on review, the
ordinances enacted by the Sangguniang bayan. (DILG Opinion No. 157-1994)
A vice mayor who refuses to sign ordinances approved by a majority of the Sanggunian is guilty of
gross negligence or abuse of authority (DILG Opinion dated 28 June 2011).
Absences as a ground for disciplinary action
Absence for more than 15 consecutive days without filing for a formal leave of absence constitutes a
ground for disciplinary action.
Travel abroad without due notice to the council constitutes unauthorized absence. (DILG Opinion No.
24-1993)
May the Sanggunian suspend a Sanggunian Secretary or other appointive official?
No. The power to discipline appointive officials is lodged with the Civil Service Commission only.
However, the local chief executive, as head of agency, may impose disciplinary sanctions on
appointive officials after due process. (DILG Opinion No. 132-2003)
Preventive Suspension
This is not a penalty
This may be imposed by the Sanggunian on any elected subordinate official immediately upon filing of
the complaint even before the answer is filed; (DILG Opinion No. 132-2003)
The authority of the local chief executives(Governor/Mayor) to impose preventive suspension is purely
ministerial since the disciplinary authority over erring municipal Sangguniang Panlalawigan,
Sangguniang Panlungsod or Sangguniang Bayan, as the case may be.
Hence after the Sanggunian shall have determined the necessity to warrant the imposition of
preventive suspension, the same only need to be implemented by the local chief executive concerned.
(DILG Opinion No. 56-11, Sept. 2, 2011)
Procedures for Preventive Suspension
This may be imposed by the mayor /governor upon recommendation by the Sanggunian;
Maximum of 60 days per case but not exceeding 90 days suspension in one year;
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The suspended official is deemed automatically reinstated after the period of suspension (Section 63,
LGC)
The authority of the local chief executives (Governor/Mayor) to impose preventive suspension is purely
ministerial since the disciplinary authority over erring municipal or barangay elective officials is the
Sangguniang Panlalawigan, Sangguniang Panlungsod or Sangguniang Bayan, as the case may be.
Hence, after the sanggunian shall have determined the necessity to warrant the imposition of
preventive suspension, the same only need to be implemented by the local chief executive concerned.
(DILG Opinion No. 56-11, Sept. 2, 2011)
Salary During Preventive Suspension

An elected official preventively suspended from office shall receive no salary during such suspension;
But upon reinstatement, he shall be paid full salary including all emoluments accruing during such
suspension. (Section 64, LGC)
Penalty of Suspension
An elected official may be suspended by the Sanggunian for a period of not more than six(6) months;
This can only be imposed after due notice and hearing;
The investigation must be terminated within 90 days from the start of the proceedings.
The Sanggunian must decide the case within 30 days after the case is submitted for decision. (Section
66, LGC)
Can a local Sanggunian remove an elected official of the LGU?
NO. The Sangguniang Panlungsod or Sangguniang Bayan cannot order the removal of an erring
elective barangay official from office, as the courts are exclusively vested with this power under
Section 60 of the Local Government Code.
THE SANGGUNIANG BARANGAY OF BARANGAY DON MARIANO MARCOS vs MARTINEZ, G.R.
No. 170626 March 3, 2008
What is the Doctrine of Administrative Condonation?
The rule that public official cannot be removed for administrative misconduct committed during a prior
term, since his re-election to office operates as a condonation of the officers previous misconduct to
the extent of cutting off the right to remove him therefore.
Note that this has no application to pending criminal cases. (Aguinaldo V. Santos, G.R. No. 94115,
Aug. 21, 1992)
When is subsequent re-election considered a condonation?
If the decision of the administrative disciplinary authority penalizing the respondent local elective
official had become final and executor before the election then the principle of condonation for a
misconduct during a prior term will not apply.
On the other hand, if the said adverse decision against the respondent was not yet final and executor
on the day of appeal on said date, then the principle of condonation will apply. (Malinao V. Reyes, G.R.
117618 Mar 29, 1996)
Note: Subsequent re-election cannot be deemed a condonation if there was already a final
determination of his guilt before the re-election (Reyes V. COMELEC, G.R. No. 120905 March 7,
1996)
May the Sanggunian continue hearing a case even after the respondent has been re-elected to office?
No. An administrative case becomes moot and academic as a result of the expiration of term of office
of an elective barangay official during which the act complained of was allegedly committed.
Futher, proceedings against the respondent are barred by his/her re-election. (Malinao vs. Reyes G.R.
No. 117618 march 29, 1996)
May the Sanggunian hear a case involving acts committed in a prior term?
No. A public official cannot be removed for administrative misconduct committed during a prior term
since his re-election to office operates as a condonation or forgiveness of his previous misconduct.
(Aguinaldo v. Santos) (DILG Opinions Nos. 177-1992; 42, 107-1995)
Ciar,JAP
May the Sanggunian hear a case when the respondent already resigned?
No. A Sanggunian loses jurisdiction over administrative proceedings against a barangay official who
has already resigned since official relations have been terminated by such act. (DILG Opinion NO.
323-1992)
Signature of the Mayor
The decision of the Sanggunian to suspend a brgy. Official DOES NOT REQUIRE THE SIGNATURE
OF THE MAYOR TO BE VALID;
The mayor, however, will be the one to implement the penalty of suspension;
The mayor cannot sit on the decision or refuse to implement the suspension.
If he does, he can be charged with abuse of authority or dereliction of duty. (DILG Opinion No. 142002; Opinion No. 9-2004)
QUALIFICATIONS
What are the qualifications of an elective Government Official?
Must be a resident therein for at least 1 year immediately preceding the day of the election.
Able to read and write Filipino any other local language or dialect.
Age requirement; (Sec. 39, LGC)
o 23 gov; vice gov, mayor, vice mayor, councillor (highly urbanized cities),
o 21 mayor, vice mayor (component cities/municipalities),
o 18 sanggunian members and punong barangay
o 15 to 17 SK officials
When should the citizenship requirement be possessed?
A: The citizenship requirement in the LGC is to be possessed by the elective official, at the latest, as of
the time he is proclaimed and at the start of the term of office to which he has been elected.
The LGC does not specify any particular date or time when the candidate must possess citizenship unlike the
requirements for residency and age Repatriation under PD 825 is valid and effective and retroacts to the date
of the application. (Frivaldo v. COMOLEC, G.R. No. 120295, June 28, 1996)
Question:
X was a natural-born Filipino who went to the USA to work and subsequently became a naturalized
American citizen.
However, prior to the filing his Certificate of Candidacy for the Office of Mayor of the Municipality of
General Mcarthur, Eastern Samar, on 28 March 2001, he applied for reacquisition of his Philippine
Citizenship.
Such application was subsequently granted. Y filed a petition to disqualify X on the ground of failure to
comply with the 1-year residency requirement.
Y argues that reacquisition of Philippine citizenship, by itself, does not automatically result in making X
a resident of the locality.
Answer:
Yes. Xs reacquisition of his Philippine citizenship under R.A. No. 9225 had no automatic impact or
effect on his residence/domicile.
He could still retain his domicile in the USA and he did not necessarily regain his domicile in the
Municipality of General Mcarthur Eastern Samar, Philippines.
X merely had the option to again establish his domicile in the Municipality of General Mcarthur ,
Eastern Samar, Philippines, said place to have become his new domicile of choice. The length of his
residence therein shall be determined from the time he made it his domicile of choice and it shall
retroact to the time of his birth. It is the fact of residence that is the decisive factor in determining
whether or not an individual has satisfied the residency qualification requirement.
However, even if Ys argument is correct this does not mean that X should be automatically
disqualified as well since there is proof that aside from the reacquisition of his Philippine Citizenship
there are other subsequent acts executed by X which show his intent to make General Mcarthur,
Eastern Samar his domicile, thus making him qualified to run for Mayor. (Japzon v. COMELEC G.R.
No. 180088, Jan. 19, 2009)
Ciar,JAP
Marcos v. COMELEC, [G.R. No. 119976, September 18, 1995]
She indicated in her COC that her residence in Leyte is 7 months. The Constitution requires 1 year
residence. Is she qualified?
YES. The principle of animus revertendi was used to show that she has an intention to return to the
place where she seeks to be elected.
The SC has held that the term residence is vague. It ruled that domicile and residence are
synonymous.
Aquino v. COMELEC (1995)
Butz Aquino was a senator residing in Tarlac when he filed a COC for Congressman of Makati City.
He brought a condo unit in Makati City 1 year before the election. Is he qualified?
NO. The term residence, as used in election law, is CLEAR.
It imports not only an intention to reside in a fixed place but also a personal presence in the place,
coupled with conduct indicative of such intention.
What is RESIDENCE for election purposes?
It implies the factual relationship of an individual to certain place. It is the physical presence of a
person in a given area, community or country. For election purposes the concepts of residence and
domicile are dictated by the peculiar criteria of political laws.
As these concepts have evolved in our election law, what has clearly and unequivocally emerged is
the fact that residence for election purposes is used synonymously with domicile. (Marcos v.
Comelec, G.R. No. 119976, Sept. 18, 1995)
What is the effect of transfer of residence?
Any person, who transfers residence solely by reason of his occupation, profession or employment in
private or public service, education, etc., shall not be deemed to have lost his original residence.
(Asistio v. Aguirre, G.G. No. 191124, April 27, 2010)
Question:
Dan Fernandez ran for congressman of the First District of Laguna. In his COC he indicated that his
complete/exact address is in Sta. Rosa City, Laguna.
Vicente sought the cancellation of the CoC of Dan Fernandez and his disqualification as a candidate
on the ground of an alleged material misrepresentation in his CoC regarding his place of residence,
because during past elections, he had declared Pagsanjan, Laguna as his address, and Pagsanjan
was located in the Fourth District of Laguna and that Dan Fernandez is merely leasing a property in his
alleged Sta. Rosa residence.
Does the constitution require that a candidate be a property owner in the district where he intends to
run?
Answer:
No. Although it is true that the latest acquired abode is not necessarily the domicile of choice of a
candidate, there is nothing in the Constitution or our election laws which require a congressional
candidate to sell a previously acquired home in one district and but a new one in the place where he
seeks to run in order to qualify for a congressional sear in that other district.
Neither do we see the fact that Fernandez as only leasing a residence in Sta. Rosa at the time of his
candidacy as a barrier for him to run in congressional candidate to be a property owner in the district
for at least a year prior to Election Day.
To use ownership of property in the district as the determinative indicium of permanence of domicile or
residence implies that only the landed can establish compliance with the residency requirement.
This Court would be in effect, imposing a property requirement to the right to hold public office, which
property requirement would be unconstitutional. (Fernandez v. HRET, G.R. No. 187478, Dec. 29,
2009)
Ciar,JAP
Question:
Svetlana Jalosjos filed her Certificate of Candidacy (CoC) for mayor of Baliangao, Misamis Occidental.
She indicated therein her place of birth and residence as Barangay Tugas.
A Petition to cancel her COC was filed on the ground that she had falsely represented her place of
birth and residence because she was in fact born in San Juan, Metro Manila, and had not totally
abandoned her previous domicile, Dapitan City.
S. Jalosjos averred that the error in her place of birth was committed by her secretary and that such
error is not a material misrepresentation, because it is not one of the qualification provided by law.
S. Jalosjos won the elections but the COMELEC ruled that she was disqualified because she has not
been bodily present in Barang Tugas, for the required one (1) year period.
Was the COMELEC correct in disqualifying her?
Answer:
YES
There are three requisites for a person to acquire a new domicile by choice. First, residence or bodily
presence in the new locality. Second, an intention to remain there. Third, an intention to abandon the
old domicile. These circumstances must be established by clear and positive proof.
In the absence of clear and positive proof based on these criteria, the residence of origin
should be deemed to continue. Only with evidence showing concuttence of all three requirements
can the presumption of continuity or residence be rebutted, for a change of residence requires an
actual and deliberate abandonment and one cannot have two legal residences at the same time.
(Svetlana Jalosjos v. COMELEC, G.R. No. 193314, February 26, 2013)
Why was she disqualified?
Moreover, even if these requisites are established by clear and positive proof, the date of acquisition
of the domicile of choice, or the critical date, must also be established to be within at least one year
prior to the elections using the same standard of evidence.
As to her assertion that she owns properties in Baliangao the court ruled that the ownership of a house
or some other property does not establish domicile.
This principle is especially true in this case as she has failed to establish her bodily presence in
the locality and her intent to stay there at least a year before the elections.
(Svetlana Jalosjos v. COMELEC, G.R. No. 193314, February 26, 2013)
How can ones residence be determined?
There is no hard and fast rule to determine a candidates compliance with residency requirement since
the question of residence is a question of intention.
Still, jurisprudence has laid down the following guidelines: (a) every person has a domicile or residence
somewhere, (b) where once established, that domicile remains until he requires a new one, and (c) a
person can have but one domicile at a time.
(Rommel Jalosjos v. COMELEC, G.R. No. 191970, April 24, 2012)
DISQUALIFICATIONS
Moreno vs. COMELEC, 498 SCRA 547
The legal effect of probation is only to suspend the execution of the sentence.
In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies
for probation, although it is not executor pending resolution of the application for probation.
If the candidate for elective office was convicted but was granted probation, he may run, because he
did not serve his sentence.
Who are persons disqualified from running for any elective local position?
1. Sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1
year or more of imprisonment within 2 years after serving sentence.
2. Removed from office as a result of an administrative case.
Ciar,JAP
3.
4.
5.
6.
7.
8.
9.
Convicted by final judgment for violating the oath of allegiance of the Republic.
Those with dual citizenship.
Fugitives from justice in criminal or non-political cases here or abroad.
Permanent residents in a foreign country or those who have acquired the right to reside abroad and
continue to avail of the same right after the effectively of this LGC.
Insane or feeble-minded (Sec 40, LGC)
Vote buying (upon determination in a summary administrative proceeding)(Nolaso y COMELEC, G.R.
Nos. 122250 & 122258, July 21, 1997)
Removal by administrative proceedings (perpetual disqualification)(Lingating v. COMELEC, G.R. No.
153475, Nov. 13, 2002)
Dual Citizenship
Mercado v. Manzano, 307 SCRA 630(1999)
The term dual citizenship is vague
It is dual allegiance which is inimical to the national interest and shall be dealt with by law.
Hence, Section 40(d) of the LGC and Sec. 20 of RA 7854 must be understood as referring to dual
allegiance even if it uses the phrase dual citizenship
Note:
The phrase dual citizenship as a disqualification in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20
must be understood as referring to dual allegiance
(Mercado v. Manzano, G.R. No. 135083, May 26, 1999)
Question:
A is a naturalized citizen of another country who reacquires Filipino citizenship. On the other hand,
B possesses dual citizenship by birth.
If they desire to run for elective public office, what requirement must they comply with as regards their
citizenship?
Answer:
A must comply with the requirements set in R.A. 9225, Sec 5(3) of R.A. 9225 states that naturalized
citizens who reacquire Filipino citizenship and desire to run for public office shall ...make a personal
and sworn renunciation of any and all foreign citizenship before any public officer authorized to
administer an oath aside from the oath of allegiance prescribed in Section 3 of R.A. 9225. (Cordora v.
COMELEC, G.R. No. 176947, February 19, 2009)
B need not comply with the twin requirements of swearing an oath of allegiance and executing a
renunciation of foreign citizenship because he is a natural-born Filipino who did not subsequently
become a naturalized citizen of another country. It is sufficed, if upon the filing of his certificate of
candidacy, he elects Philippine citizenship to terminate his status as a person with dual citizenship
considering that his condition in the unavoidable consequence of conflicting laws of different States.
(Cordora v. COMELEC, G.R. No. 176947, February 29, 2009)
What is the effect if a dual citizen runs for public office without renouncing his foreign citizenship?
He/She will be disqualified from running for elective office for failure to renounce his/her foreign
citizenship in accordance with Section 5(2) of R.A. No. 9225.
R.A. No. 9225 categorically demand natural-born Filipinos who re-acquire their citizenship and seek
elective office, to execute a personal and sworn renunciation of any and all foreign citizenships before
an authorized public office prior to or simultaneous to the filing of their certificates of candidacy to
qualify as candidates in Philippine elections.
It is a pre-requisite imposed for the exercise of the right to run for public office (Sobejana-Condon v.
COMELEC, G.R. No. 198742, August 10, 2012)
Ciar,JAP

Masikip v. City of Pasig, 479 SCRA 391 (2006) : Lectures by Atty. Enrique Dela Cruz

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Public Corporation 1

Lectures by Atty. Enrique Dela Cruz

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