REPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT A. Francisco Gold Condomniuin Bldg, EOSA omar Mapogmahal St, Diinan, Quezo0 City ‘OFFICE OF THE UNDERSECRETARY JIG OPiMtGN WO.27__8, 2009 March 25, 2009 HON. JESUS RADMAR T. RESENTE Punong Barangay Bray. Congress 173, Congress Village North Caloocan City Dear Punong Bray. Resente: This pertains to your letter seeking our legal opinion on the following ‘queries, which we quoted in toto “1, Whether or not the temporary barangay secretary (Mrs. Rosalie V. Rojas) can discharge the duties and functions of her office, specially signing the Resolutions for attachments of the Supplemental Budget and other documents while a case is pending with the Sangguniang Panlungsod of Caloocan City regarding the power to appoint and to terminate barangay officials, filed against the Punong Barangay. 2. Whether or not the Sangguniang Barangay can validly appoint a temporary secretary from among, the Sangguniang Barangay members during the conduct of sessions, notwithstanding the fact that a Barangay Secretary had been appointed, before the case had been filed before the Sangguniang Panglungsod in the exigency of public service because the former secretary had been terminated due to absences without official leave 3. Whether or not the appointed Temporary Barangay Secretary (MRS. ROSALIE V. ROJAS), acting and performing the duties and functions of her position for almost four (4) months now, pending concurrence by the Sangguniang Barangay and while a case is pending against the Punong Barangay on issues of appointment and termination of the secretary can validly receive her allowance/remuneration.” Before dwelling on your queries, may we fist invite your attention to the following provisions of the Local Government Code and DILG Memorandum Circular No. 2002-150 dated September 18, 2002, to wit Section 394 of the Local Government Code provides that: ‘ 394, BARANGAY SECRETARY: APPOINTMENT QUALIFICATIONS, POWERS AND DUTIES (a) The barangay secretary shall be appointed by the punongbarangay with the concurrence of the majority of all the + sangguniang barangay members. The appointment of the barangay secretary shall not be subject to attestation by the Civil Service Commission. Article Il, Sections 4 and 5 of DILG Memorandum Circular No. 2002-150 also provides that: Section 4, Pending Compliance with the condition of concurrence, the appointee, in the exigency of public service, shall be allowed to discharge and perform the powers, duties and. responsibilities pertaining to the office and they shall be considered to be holding a temporary appointment.” “Section 5. Pursuant to Section 5 of RA 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees” the Sangguniang Barangay shall act on the appointment within fifteen (15) working days from receipt of the appointment as submitted by the punong barangay.” In the case of Alquizola vs. Ocol [313 SCRA 293), the Supreme Court tuled that “the power to appoint is 10 be exercised conjointly by the Punong Barangay and a majority of all the members of the sangguniang barangay." Such being the case, the correlative duty of the members of, the Sangguniang Barangay being referred to would now be the required concurrence, and pending concurrence, being the final phase of the ‘appointment, shall make the appointment temporary (Sec. 4, DILG MC NO. 2002-150} Applying the above-cited provisions of the Local Government Code, BILG Memorandum Circular and the Supreme Court ruling to your first and last queries, please be informed that the appointed Secretary (MRS. ROSALIE V. ROJAS) may assume her duties and functions.in an acting capacity pending concurrence by the majority members of the Sangguniang Barangay. However, once the Sangguniang Barangay expresses officially its non-concurrence to the appointment, the barangay secretary shall not be anymore allowed to pertorm her duties. May it be emphasized, however, that while the power to Concur is given fo the Sangguniang Barangay, said body is not vested with so much plenary discretionary powers. The power to concur is intended for the sanggunian to determine whether or not the appointee of the Punong Barangay possesses all the quaifications prescribed for Barangay Secretary under Section 394 of the Local government Code and such other qualifications provided for by existing laws, such as relative within the 4% civil degree; previously removed from government service for couse; and other grounds. If the appointee, therefore possesses all the qualifications provided for by law, then the Sangguniang Barangay has no other farreaching powers except to issue the concurrence. Exceeding that limitation, the Sangguniang Barangay would already be effect exercising the appointing authority and prerogatives of a Punong,Barangay, who is vested the power by the Local Government Code to appoint the Barangay Secretary, Let it be noted that, under Article Il Section 5 of the DILG MC No. 2002-150, the Sangguniang Barangay was given only fifteen (15) working days from receipt fo act on the appointment submitted by the Punong Barangay, Accordingly, if the Sangguniang Barangay shovid exceed its power in exercising its power of concumence, meaning, the non-concurence was exercised whimsically, arbitrarily and without basis in fact and in law, then they may be opening themselves to possible criminal, administrative and civil cases against them. At this point, itis relevant to note also that in the exigency of public service, pending compliance with the condition of concurrence, the ‘appointee, shall be allowed to discharge and perform the powers, duties ‘and responsibilities pertaining to the office and she shall be considered to be holding a temporary appointment. As such, she (ROSALIE V. ROJAS) is entitled to receive her honoraria and other allowances/remuneration from the first day she assumed to the office of the Secretary. However, the appointment of the incumbent Barangay Secretary pending the case tiled with the Sangguniang Paniungsod of Caloocan City, still remains valid until annulled by the court and such decision shall be respected. In reply to your second query, please be informed that the Sangguniang Barangay has no power to appoint a Barangay Secretary because such authorily is vested to Punong Barangay as discussed above Furthermore, the appointment of the Barangay Secretary’ cannot bbe issued considering that the position of the Barangay Secretary is not yel declared vacant as theie is sill a holder of the said position. Such being the case, if the Barangay Secretary is absent, the Sangguniang Barangay may designate from among themselves a temporary Barangay Secretary only for that particular purpose. We hope we have enlightened you on the matter. AUSTERE A. PANADER Undersecretary y; Vv ‘srer94trme