Republicof te Phitpnes DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT [ILG-NAPOLCOM Carte, EDSA corer Quezon Aver, West Tal, Qvzon ly 1a hve 988 17 AUG 2013 REP. ERLPEJOHN“PING’ M. AMaNTE [LG OPINION %>: &6 House of Representatives = Constitution Hills Quezon City Dear Rep. Amante: This has reference to your letter dated 10 July 2018 requesting the Department’s legal opinion on the issue of the construction of Cabadbaran City Hospital. After a careful review of the documents received by this Department from OIC, Regional Director Pol M. Delos Santos of DPWH-CARAGA, it appears that the herein issue rooted from Resolution No. 172-2017 passed by the Sangguniang Panlalawigan (SP) of Agusan del Norte, disapproving Resolution Nos. 2017-001 and 2017-002 passed by the Sangguniang Panlungsod (SP) of Cabadbaran City. Resolution Nos. 2017-001 and 2017-002 were disapproved by the SP of Agusan del Norte due to the absence of quorum when they conducted the regular session dated 19 April 2017 and special session dated 24 April 2017, respectively. In the 8° WHEREAS, Clause of Resolution No. 172-2017, it was stated that the SP of Cabadbaran City is composed of 12 members including the City Vice-Mayor (VM), the Presiding Officer and with this number, the quorum is seven (7). Per the documents submitted to this Department, specifically the document labeled as “CHRONOLOGY OF EVENTS (lllegal passage of Cabadbaran'’s AIP 2017 & Annual Budget 2017)’, it appears that on March 1, 2017, Mayor Katrina Mortola applied for Vacation Leave with the Office of the Provincial Governor for her travel to Korea between April 20-21, and April 24-28, 2017. Such application was deemed approved due to inaction after the lapse of the 5-day reglementary period. On April 7, 2017, Mayor Mortola again filed an application for Special Leave before the same office from April 17-19, 2017 but was disapproved by the Provincial Governor in a letter dated 18 April 2017. Nevertheless, on 17 April 2017, Mayor Mortola sent a letter addressed to the members of the SP of Cabadbaran City informing them that she will be taking a vacation leave on April 17-28, 2017. In the said letter, Mayor Mortola did not expressly designate VM Jamboy as Acting Mayor, she just cited Section 46(a) of Republic Act No. 7160, or the “Local Government Code" (LGC) to wit: ow“SECTION 46. Temporary Vacancy in the Office of the Local Chief Executive. - (a) When the governor, city or municipal Mayor, or Punong Barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office, the vice- governor, city or municipal vice-mayor, or the highest ranking Sangguniang Barangay member shall automatically exercise the powers and perform the duties and functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty (30) working days.” Hence, the dilemma whether there was a temporary vacancy or absence without leave (AWOL) on the part of Mayor Mortola and whether or not the quorum required was obtained in the passage of Resolution Nos, 2017-001 and 2017-002. It can be gleaned from the above-mentioned provision of the LGC that temporary incapacity to perform the duties is not limited to leave of absence but may be for physical or legal reasons, such as but not limited to leave of absence, travel abroad, and suspension from office. In fact, in previous legal opinions rendered by this Department, we also considered fugitive from justice as temporary incapacity to perform the duties, hence, there arises temporary vacancy. Applying the same in the herein case, it will be very unfair if we will consider fugitive from justice as temporary incapacity to perform the duties of the incumbent but not as to the absence of Mayor Mortola where her leave of absence dated April 17-19, 2017 was duly communicated to the sanggunian, albeit disapproved by the Provincial Governor, and in the chronology of event, it was recognized that on April 20, 2017, Mayor Mortola is absent for four (4) days, It can be concluded that even if her leave of absence was disapproved, she was not present in the city since April 17, 2017. To our mind, her leave of absence that was not approved coupled with the absence of Mayor Mortola in the city may fall on any other grounds that can be considered a temporary incapacity to perform her duties because she travelled, and that to us is a physical or legal reason. Leaning towards temporary vacancy, Section 46(a) of the LGC is very explicit that the Vice-Mayor shall automatically exercise the powers and perform the duties and functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty (30) working days. Thus, the performance of the duties and functions of the Mayor by the VM during the time when the former is temporarily incapacitated to do the same creates a corresponding temporary vacancy in the latter's office during such contingency which may be paralleled to the case of Gamboa vs. Aguirre!, which discusses the effects of vacancy in the Office of the Governor, viz: " GR.No. 134213, 20 July 1999‘A Vice-Governor who is concurrently an Acting Governor is actually a quasi-Governor. This means, that for purposes of exercising his legislative prerogatives and powers, he is deemed as a non-member of the SP for the time being. By tradition, the offices of the provincial Governor and Vice-Governor are essentially executive in nature, whereas plain members of the provincial board perform functions partaking ofa legislative character. This is because the authority vested by law in the provincial boards involves Primarily a delegation of some legislative powers of Congress. Unlike under the old Code, where the Governor is not only the provincial Chief Executive, but also the presiding officer of the local legislative body, the new Code delineated the union of the executive-legislative powers in the provincial, city and municipal levels except in the Barangay. Under R.A. 7160, the Governor was deprived of the power to preside over the SP and is no longer considered a member thereof, wore Je has been held that if a Mayor who is out of the country is considered “effectively absent", the Vice-Mayor should discharge the duties of the mayor during the latter's absence. This doctrine should equally apply to the Vice-Governor since he is similarly situated as the Vice-Mayor. Although it is difficult to lay down a definite rule as to what constitutes absence, yet this term should be reasonably construed to mean “effective” absence, that is, one that renders the officer concerned powerless, for the time being, to discharge the powers and prerogatives of his office. There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu, contrario, there is vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office. By virtue of the foregoing definition, it can be said that the designation, appointment or assumption of the Vice~ Governor as the Acting Governor creates a corresponding temporary vacancy in the office of the Vice-Governor during such contingency. Considering the silence of the law on the matter, the mode of succession provided for permanent vacancies, under the new Code, in the Office of the Vice-Governor may likewise be observed in the event of temporary vacancy occurring in the same office. This is so because in the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor. mx ax oa To repeat, the creation of temporary vacancy in the office of the Governor creates a corresponding temporary vacancy in the Office of the Vice-Governor whenever the latter acts as Governor by virtue of such temporary vacancy. This event constitutes an “inability” onthe part of the regular presiding officer (Vice-Governor) to preside during the SP sessions, which thus calls for the operation of the remedy set in Article 4%(b) of the Local Government Code — concerning the election of a temporary presiding officer. The continuity of the Acting Governor's (Vice-Governor) powers as Presiding officer of the SP is suspended so long as he is in such capacity. Under Section 49(b), “(iJn the event of the inability of the regular presiding officer to preside at the sanggunian session, the members present and constituting quorum shall elect from among themselves a temporary presiding officer.” On the basis of the foregoing, this Department is of the considered view that the SP of Cabadbaran City shall be composed of 11 members, including the Presiding Officer but excluding the City Vice-Mayor (VM), because the said VM already became the Acting Mayor. May we also emphasize that designation of the VM as the Acting Mayor is no longer necessary as the law is very clear when it says that the Vice-Mayor shall automatically exercise the powers and perform the duties and functions of the local chief executive concerned. Henceforth, in determining the quorum, let it be noted that pursuant to Section 53 of the LGC, quorum is a majority of all the members of the sanggunian who have been elected and qualified. Along this line, it bears to emphasize that the meaning of “majority” is that which is greater than half of the membership of the body or that number which is 50% + 1 of the entire membership? In the case herein, it can be presumed that there are 10 regular members and 1 presiding officer were present during the approval of the subject resolution, Thus, the minimum number of sanggunian member required to transact business and to constitute quorum is 6, which in this case was attained: on Jurisprudence defines “majority” as that which is 50% plus 1 or that which is greater than half of the membership of the body. It is noted however that there can never be a fractional member of a sanggunian’, Hence, the more appropriate thing to do is to go down to the next lower whole number, which is 6. Corollary thereto, if we take the relationship Of 6 vis-A-vis 5.5, 6 is definitely greater than 5.5, hence, 6 is greater than ¥ of 11 ? Santiago vs. Guingona, et al (G:R. No, 134577, 18 November 1998) ? DILG Legal Opinion No. 23, §. 2016 dated 27 September 2016In view of the foregoing, it appears that the SP of Cabadbaran City composed of 11 members (excluding the Vice-Mayor) had validly obtained the required quorum in passing Resolution Nos. 2017-001 and 2017-002. ‘Thank you and we hope to have addressed your concern accordingly. Very truly yours, By 7 of the Secretary: AUSTERE A. PANADERO Undersecretary 1 CC: Dir, Lilibeth A. Famacion Regional Director Region XIII - CARAGA Region Pol M. Delos Santos OIC Regional Director DPWH-CARAGA Region w e ai