Republic of the Philippines

DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT

DILG-NAPOLCOM Center, EDSA corner Quezon Avenue, West Triangle Quezon City
http://www.dilg.gov.ph

MEMORANDUM
FOR : RYAN ALVIN R. ACOSTA
Deputy Executive Secretary for Legal Affairs
Office of the President

RE : RECOMMENDATION ON OP-DC CASE NO. 18-C-041, ENTITLED:

“ELMER HONORIDEZ CANILLO VERSUS MAYOR JOHN HENRY R.
OSMEÑA.” (Toledo City, Cebu)

DATE :

1.0 ACTION REQUESTED:

1.1 For the kind approval and signature of the Executive Secretary, after due
consideration of the Deputy Executive Secretary for Legal Affairs, on the attached draft
Decision on the subject Administrative Case.

2.0 REFERENCE:

2.1 Order dated June 19, 2018 from Deputy Executive Secretary for Legal
Affairs Ryan Alvin R. Acosta, Office of the President.
2.2 Complaint- Affidavit dated February 4, 2018 of Elmer Honoridez Canillo
2.3 Answer dated April 23, 2018 of Mayor john Henry R. Osmeña

3.0. BACKGROUND AND FACTS OF THE CASE:

This pertains to the administrative case filed by the complainant, Elmer

Honoridez Canillo against Mayor John Henry R. Osmeña, for violation of DILG
Memorandum Circular No. 2014-155, R.A. 9184, Grave Misconduct, and
Nonfeasance.

On June 19, 2018, Honorable Ryan Alvin R. Acosta, Deputy Executive

Secretary for Legal Affairs of the Office of the President, issued an Order directing
the Department of the Interior and Local Government to proceed with the conduct
of formal investigation in the above-referenced case.

In his Complaint-affidavit dated February 4, 2018, the complainant alleged

that the purchase by the respondent of twelve (12) units of Nissan NP Navara 4x4
on August 11, 2015, and another seven (7) units of said vehicle on January 18,
2017 were both made without prior approval of the Secretary of Interior and Local
Government, in violation of Section 3.3 of Presidential Administrative Order No.
15,2.2011, Amending Administrative Order 233 s. 2008 entitled” Reiterating the
Prohibition on the Acquisition and use of Luxury Vehicle and Directing Revisions of
Guidelines on Government Motor Vehicles Acquisition. The complainant further
alleged the following:

1. That the required written report after the completion of the procurement
process as provided under Section 1.7 of Memorandum Circular 2014-155 was
not complied with by the respondent;

2. That there had been no justifications that these vehicles were necessary in the
interest of public service pursuant to Section 1.1.1.3 of the DILG memorandum
Circular 2014-155;
3. That the provisions of 4.1, 4.1.1, 4.1.2, 4.1.3, and 4.1.4.1 of Memorandum
Circular 2014-155, dealing with the documentary and procedural requirements
in the issuance of authority to purchase motor vehicles were also allegedly
violated by the respondent;
4. And lastly, the complainant alleged that the said units are considered to be
luxury vehicles, which are prohibited under the law.

In support of his allegations, complainant offered the following pieces of

evidence attached to his complaint-affidavit as proof of said acquisition:

1. Purchase Order dated August 11, 2015 ( Annex”A”)

2. Bids and Awards Committee letter dated January 9, 2018 stating that it
has no records of any copy of the Authority from DILG covering the
procurement of the existing Nissan motor vehicles. ( Annex” B)
3. A copy of the DILG Memorandum Circular No.2014-155 ( Annex”C”)
4. Disbursement Voucher covering the 12 units of Nissan Navara
(Annex”D”)
5. Purchase Request dated April 16,2015 ( Annex”E”)
6. Copy of the Abstract of Bids for the supply/delivery of 4x4 Pick-up for
the City Government use (Annex”F”)
7. Requisition and Issue Slip dated September 17, 2015 (Annex”G”)
8. Disbursement Voucher covering the 7 units of Nissan Navara
(Annex”H”)
9. Purchase Request dated August 18, 2016 ( Annex “I”)
10.Purchase Order dated January 1, 2017 ( Annex” J”)
11.Abstract of Bids ( Annex”K”)
12.Requisition and Issue Slip dated February 1, 2017 (Annex”L”)
13.Bids and Awards Committee resolution declaring Nissan Cebu
Distributors Inc. as the lowest calculated responsive bid for the supply and
delivery of 7 units Pick up Brand New Government Vehicle ( Annex “M”)
14.Notice of Award ( Annex “N”)

In his Answer dated April 23, 2018, the respondent strongly asserts that the
complainant in this case has not established the appropriate standing to pursue the
complaint, since the latter has not shown a direct or personal interest in the actions
of the Respondent as mayor. In addition, that a mere allegation in the complaint
that the complainant is a taxpayer is not sufficient to constitute a taxpayer’s suit.

The respondent further claims that the provision which complainant insists that
the respondent allegedly violated, is from Memorandum Circular No. 2015-155,
particularly Section 3.3 thereof, and not from Administrative Order No. 15, as
stated in the complaint. He further alleged that nevertheless, Section 3.3 of
Memorandum Circular 2014-155 is still not applicable, since the acquisition of the
said units were not made in accordance with Section 3.3 of the DILG Memorandum
Circular, but rather Section 3.1 of the same issuance, which section, by itself,
authorizes LGUs to purchase types of vehicles enumerated therein.

Respondent asserted that the purchase request covering the Nissan Navara
units will show that the vehicles are specific-purpose vehicles, which are specifically
for the use of the City Government; that in addition, the same was acquired
through unencumbered available local funds; and that the same can even be said to
fall under cargo transport equipment for mass transport, when the same becomes
necessary in the interest of public service. Thus, respondent argued that it would be
superfluous for him, already fully authorized under the law, to be required to seek
the authorization from the Secretary of Interior and Local Government. That
moreover, section 4 of the Memorandum Circular 2014-155 are not relevant to the
acquisition of the Nissan Navara units, since the documentary and procedural
requirements as laid down by the said section apply only to purchases that need
authorization from the Secretary of Interior and Local Government.

The Respondent also vehemently denies that the Nissan Navara units he
purchased are luxury vehicles, since under Section 2.2 of the Administrative Order
No.233 (2008), a pick up type vehicle is considered to be a “luxury vehicle” if it
has an engine displacement exceeding 2200cc, if gasoline-fed; or 3,000cc, if diesel-
fed; and with an engine exceeding 4 cylinders, whereas, a simple look into the
annexes of the complaint will show that the Nissan Navara, a pick-up type vehicle,
are diesel-fed vehicles with engine displacement of 2,488cc, which is very much
within the limits placed in the law, and definitely not a luxury vehicle.

ISSUES:
1. Whether or not the complainant has a legal standing to initiate the instant
case;
2. Whether or not the respondent violated the provisions of the DILG
Memorandum Circular 2014-155;
3. Whether or not the subject vehicles are considered to be luxury vehicles
within the purview of the law.
4. Whether or not the respondent committed a violation of the provisions of
R.A. 9184;
5. Whether or not respondent committed Grave misconduct;
6. Whether or not respondent committed nonfeasance.

EVALUATION AND RECOMMENDATION

After a thorough evaluation of the available records, no prima facie case has
been established against City Mayor John Henry R. Osmeña to warrant the
institution of formal administrative proceedings.

Complainant has no legal standing to sue

or initiate the instant case against respondent
 The complainant in this case has not established the appropriate standing to
pursue the complaint, since the latter has not shown a direct or personal interest in
the actions of the Respondent as mayor. In Galicto vs. Aquino III1, the Supreme
Court held, thus:

“Locus standi or legal standing has been defined as

a personal and substantial interest in a case such that the
party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged”.

In the instant case, Complainant failed to show any proof that he is in any
way directly affected by any acts or omissions by the Respondent.

Moreover, by alleging that he is a taxpayer, complainant gives the suit the

nature of a taxpayer’s suit. However, complainant has not properly alleged or made
of issue the necessary facts or circumstances in the instant case to show that the
elements of a taxpayer’s suit have been satisfied. In one case, the Supreme Court
had the occasion to rule, thus:

“jurisprudence dictates that a taxpayer may be allowed to sue

where there is a claim that public funds are illegally disbursed or
that public money is being deflected to any improper purpose, or
that public funds are wasted through the enforcement of an invalid
or unconstitutional law or ordinance”2.

A cursory reading of the Complaint will show that complainant made no real
and solid assertions with regard to any illegal disbursement of funds or that public
funds were used for any sort of an illegal purpose. Complainant only decries the
lack of authorization from the Secretary of Interior and Local Government. He made
no assertions that the purchase of the Nissan Navara units was detrimental or
disadvantageous to the City of Toledo. Thus, the foregoing case could instantly fail
on that ground alone.

Respondent did not violate Sections 3.3,1.7,

1.1.1.3, 4.1, 4.1.1, 4.1.2, 4.1.3, and 4.1.4.1
of Memorandum Circular No. 2014-155.

As correctly stated by the respondent, the provision which the complainant

insists that the respondent allegedly violated, is from Memorandum Circular No.
2015-155, particularly Section 3.3 thereof, and not from Administrative Order No.
15, as stated in the complaint. Section 3.3 of the said Circular provides:

3.3. APPROVING AUTHORITY OF DILG. LGU shall seek the approval

of the Secretary of Interior and Local Government (SILG) for the
acquisition of the following motor vehicle.

3.3.1xxx

3.3.2 Passenger van or pick up type vehicle with an engine

displacement not exceeding 2200cc if gasoline-fed or 3,000, if
diesel-fed.”

1
G.R. No. 193978
2
Remulla vs. Maliksi G.R. No. 171633 September 18, 2013
 In the instant case, respondent claims that the acquisition of the units were
made pursuant to Section 3.1 of Memorandum Circular 2015-155 and not in
accordance with the above-quoted provision of the same issuance. Section 3.1
states:

“ LGU AUTHORITY. All Provincial Governors, City Mayors,

Municipal Mayors and Punong Barangays are authorized to approve
the acquisition of the following vehicles to be sourced from their
unencumbered local funds:

3.1.1. Specific-purpose vehicles, such as medical ambulances,

military and police patrol vehicles, armored vehicles, prisoners’
vans and firetrucks;

3.1.2. Heavy equipment such as road construction, equipment,

cargo transport equipment, farm, machineries, waste
management/environmental sanitation equipment, and similar
vehicles/equipment;

Xxx xxx

3.1.5. Vehicles for mass transport when necessary in the interest of

public service;”

The respondent further explained that this provision is in line with the
provisions of Administrative Order No.233, which states that “Local Chief
Executives, including Punong Barangays, are hereby authorized to approve the
acquisition of the types of motor vehicles enumerated under Section 7.0 hereof to
be sourced from their unencumbered local funds. And Section 7.0 provides, the
enumeration of the vehicles covered by this authority, thus:

“ 7.1. Specific-purpose vehicles, such as medical ambulances,

military and police patrol vehicles, armored vehicles, prisoners’
vans, and fire trucks;
7.2. Heavy equipment such as, road construction equipment,
cargo transport equipment, farm machineries, waste
management/environmental sanitation equipment, and similar
vehicles/equipment;
Xxxx
7.5.Vehicles for mass transport when necessary in the interest
of public service.;”

A perusal of attachments in the complaint will show that the acquisition by

the respondent of the units falls more appropriately under Section 3.1 and not 3.3
of Memorandum Circular 2014-155. The acquisitions made were for a specific
purpose mentioned in the two purchase requests ( Complaint, Annexes “E” and “I”),
that is, for the use of the city government. The said provision further states that
the specific-purpose vehicles include but are not limited to the specifically
enumerated vehicles therein, and this is clear from the use of the phrase “such as”
, which phrase is used to introduce an example or series of examples.

Further, while Section 3.3 of the said circular specifically mentions pick-up
type vehicles, nevertheless, the said pick up type vehicles involved therein are
those with an engine displacement not exceeding 2200cc if gasoline-fed or 3,000, if
diesel-fed. In the instant case, however, Annexes A,E,F,G,I,J,K,L of the complaint
will show that the Nissan Navara units have diesel-fed engines with an engine
displacement of only 2,488cc. Hence, Section 3.3 of Memorandum Circular is clearly
not applicable in the said acquisition of the units involved.

With regard to the allegation that respondent violated Section 1.73 of

Memorandum Circular 2014-155, it is submitted that Complainant only made bare
allegations as to the non-submission by the respondent of a written report within
30 days from the procurement process regarding the units involved. Thus, it would
be unfair for respondent to be made to answer such allegations which are
unsubstantiated by any facts or evidence to support it. To stress, basic is the rule in
evidence that the burden of proof lies upon him who asserts it, not upon him who
denies, since, by the nature of things, he who denies a fact cannot produce any
proof of it4.

As to the allegations by complainant that there had been no justifications

that these vehicles were necessary in the interest of public service, as required by
Section 1.1.3 of Memorandum Circular 2014-155, the purpose of the acquisition by
the respondent of the subject vehicles can be found in the annexes of the complaint
( Complaint, Annex E), which is the use by the City Government, which should be
enough to satisfy the requirement that the acquisition be in the interest of public
service.

As to the allegation of violation of Section 4 of Memorandum Circular 2014-

155 which the Complainant charges the respondent of not complying with, are not
relevant to the acquisition of the Nissan Navara units, since the documentary and
procedural requirements in the issuance of authority to purchase motor vehicles, as
laid down by the said section, apply only to purchases that need authorization
from the Secretary of Interior and Local Government and not to those who have no
need for such authorization.

THE UNITS SUBJECT OF THE ACQUISITION

BY THE RESPONDENT ARE NOT CONSIDERED
LUXURY VEHICLES UNDER THE LAW

The Nissan Navara Units purchased by the respondent are not considered to
be luxury vehicles under the law. This is clear under Administrative Order No. 23
(2008) which has defined “luxury vehicles” in the following manner:

For the purpose of this Order, a “luxury vehicle” shall refer to any motor vehicle
with the following technical specifications:

2.1 Car (Sedan or Hatchback ) with an engine displacement exceeding

2200cc, if gasoline-fed, or 3,000cc, if diesel-fed; and with an engine
exceeding 4 cylinders;

2.2 Passenger van or pick-up type vehicle with an engine displacement

exceeding 2200cc, if gasoline-fed or 3,000cc, if diesel-fed; and with an
engine exceeding 4 cylinders;

3
Within 30 days from the completion of the procurement process, a written report on the
acquisition by the LGUs shall be submitted to the DILG. Xxx xxx
4
Acabal v. Acabal, 494 Phil. 528, 541 (2005)
 2.3 Cross-over utility vehicle (CUV) /Multi-purpose vehicle (MPV)/Asian
Utility Vehicle (AUV) with an engine displacement exceeding 2700cc, if
gasoline-fed; or 2500cc, if diesel-fed; and with an engine exceeding 4
cylinders;

2.4 Sports Utility Vehicle (SUV) with an engine displacement exceeding

2700cc, if gasoline-fed; or 2500cc, if diesel-fed; and with an engine
exceeding 4 cylinders;

Taking the foregoing into account, a simple look into the annexes of the
Complaint that repeatedly detail the specifications of the Nissan Navara units will
show that the same are diesel-fed vehicles with engine displacement of 2,488cc
(Complaint, Annexes A,E,F,G,I,J,K,L) very much within the limits specified in the
law, and definitely not a luxury vehicle.

The Complainant made empty and unsubstantiated

Allegations of Grave Misconduct, Non feasance, as
well as Violation of R.A. 9184, also known as the
Government Procurement Reform Act

On the allegation of grave misconduct, as correctly stated by the

Respondent, the charge of misconduct is a serious allegation that could cost the
person accused of such misconduct his livelihood. It is also necessary, crucial and
indispensable that the person who makes such a serious claim point to one, or even
several, if any, facts that prove that allegation. Otherwise, the same is nothing but
a self-serving and outright lie. In the instant case, complainant again failed to
substantiate his allegation that respondent committed grave misconduct since he
did not point out any act or omission in his complaint that could possibly constitute
grave misconduct on the part of the respondent.

On the charge of nonfeasance, the complainant likewise did not specify in

particular in his complaint, the facts that constitute nonfeasance by the respondent,
nor offered any evidence to substantiate it. Thus, complainant again failed to
establish his cause against the respondent.

Lastly, as to the allegation that respondent violated RA. 9184, which is

known as the Government Procurement Act, complainant failed to specify what was
violated in this law, He also failed to substantiate his said allegations with facts and
evidence to support it. Thus, similarly, complainant failed to establish his cause
against the respondent.

Consequently, finding no prima facie case against Mayor John Henry R.

Osmeña for Violation of DILG Memorandum Circular No. 2014-155, R.A. 9184,
Grave Misconduct and Nonfeasance, the undersigned respectfully recommends that
the administrative complaint against him be dismissed in accordance with Section
4, Rule 5 of the Administrative Order No. 23 series of 1992, which states that:

“Section 4. Dismissal motu proprio. If the Investigating

Authority determines that there is no prima facie case to
 warrant the institution of formal administrative proceedings, it
shall, within the same period prescribed under the preceding
Section, submit its recommendation to the Disciplining
Authority for the motu proprio dismissal of the case, together
with the recommended decision, resolution, and order.”

In the light of the foregoing, the undersigned further humbly recommends the
kind approval of the draft Decision.

USEC. EDUARDO M. AÑO

Officer-in-Charge

LLLS/TID 77