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G.R. No. 181367 LA CARLOTA CITY, NEGROS OCCIDENTAL, represented b !ts"#or, $ON. %E&&REY '. &ERRER, ET AL.,petitioners versusATTY. RE( G.RO%O, respondent.

Promulgated:

April 24, 2012)*****************************************************************************************)

CONC+RRING O'INION

In t-e Res/t0

RION,J.2

The constitutional issue before us is whether Atty. e! o"o#s $Rojo% appointment

&iolated the constitutional ban on appointment.'1(The answer to this )uestion depends on

the resolution of the prior and underlying )uestion of whether petitioner o"o e*ecti&ely

resigned from his post as sanggunian member before he was appointed as sanggunian

secretary. This )uestion, in turn, hinges on the much prior issue of the number of

sanggunian members needed to &alidly act on o"o#s tender of resignation.

+hile concur with the conclusion reached by theponencia, wish to emphasi-e

that the ice/ayor as presiding ocer is considered a member of the sanggunian for

purposes of )uorum determinationonly. n particular, the ma"ority#s ruling should by no

means be interpreted as including the ice/ayor $as presiding ocer% as sanggunianmember, where the ocal 3o&ernment ode $LGC% itself prescribes a speci5c &oting

re)uirement that ma6es )uorum determination irrele&ant.

Brief Factual Antecedents

7n arch 10, 1884,o"o, a member of the 9anggunian Panlungsod $SP% of a

arlota ity, applied for the &acant position of 9P 9ecretary. 7n the arch 1, 2004

session of the 9P, o"o tendered his irre&ocable resignation as 9P ember. At that time,

ice/ayor e! ;alandoon $Jalandoon%, as presiding ocer, and si! members of a twel&e/

member sanggunian were present.

7n arch 1

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for lac6 of )uorum, it was argued that o"o continued to be an electi&e ocial who was

ineligible for appointment to a public oce under the onstitution.'2(

Core Isse

submit that the )uorum issue in this case can be decided by approaching the

problem from the point of the )uestion: to whom does the LGC vests the power

to accept the resignation of a member of the sanggunian?

" 'os!t!on

Article

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7n the other hand, Article 4F of the 3 identi5es the composition of the

sanggunian for the purpose of determining the Dsanggunian concernedE authori-ed

to acceptthe resignation of its member. Article 4F reads:

9ection 4F. omposition. @ $a% The 9anggunian Panlungsod, the legislati&ebody of the ity shall be 4oposed othe city :!4e*#or #s pres!d!no=4er, the regular sanggunian members, the president of the city chapter of

the liga ng mga barangay, the president of the panlungsod na pederasyon ngmga sangguniang 6abataan, and the sectoral representati&es as members.

Cased on these pro&isions, belie&e that it is absurd not to include the presiding

ocer in determining whether a )uorum e!ists since $i% the law includes him as part of the

body authori-ed to accept an electi&e local ocial#s resignation and $ii% this body / the

Dsanggunian concernedE / can &alidly act only if there is a )uorum.

oreo&er, while the ice/ayor as presiding ocer cannot &ote e!cept in case of tie,

'(the determination of the )uorum for purpose ofaccepting a resignation of a sanggunian

member does notre)uire an #4t!:eparticipation on the part of any member of the

sanggunian.

Gnder the 3, the only e!press prohibition against the resignation of an electi&e

local ocial is when he is the sub"ect of an on/going recall process. '4( Gnder the Anti/3raft

and orrupt Practices Act, a public ocer who is the sub"ect of a pending in&estigation

$administrati&e or criminal% or prosecution'F(is li6ewise prohibited from resigning. This

prohibition, howe&er, is for the sole purpose of pre&enting him from frustrating the ongoing

in&estigation or prosecution, i.e., in order to be consistent with an indi&idual#s

constitutional right against in&oluntary ser&itude,'=(a public ocial may resign from the

ser&ice but his act will not cause the dismissal of the on/going proceeding against him.

'( n other words, in accepting a resignation, the sanggunian, as a body, simply ta6es a

passi&e stance on a matter that relates to the administrative duties of the ice!

"ayorhimself.

The dichotomy $i.e., the counting of the Presiding 7cer for purpose of )uorum but

without gi&ing him the right to &ote e!cept in case of a tie% can be better appreciated if it is

considered that, unli6e in the old 3, the presiding ocer is empowered, as a rule, to

appoint all ocials and employees of the sanggunian.'

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;ustice Hel astillo#s Hissent relies on the 18=8 case of Pere# v. $on. %ela Cru#.

'8( The use of the Pere#ruling, in my &iew, is misplaced.

n Pere#& the Iaga ice/mayor irginia Pere- wanted to :ote !n t-e se/e4t!on of $i%

the secretary of the municipal board of Iaga and $ii% the chairmen of the board#s &arious

standing committees. The ourt held that Pere- does not possess any :ot!n

r!-tconsidering that she was not a member of the municipal board.

n order to fully appreciate Pere#, proper consideration of its legal setting is

critical. The pertinent laws then were:

a. epublic Act $R'% 0F $the harter of Iaga%. This law d!d not pro&idefor the position of ice/ayorB and

b. A Io. 22F8 $An Act a6ing ?*ecti&e the 7ces of ayor, ice/ayor

and ouncilors in hartered ities !!!%. This law created the position of&ice/mayor in Iaga, among others. 9ection of this law, howe&er,simply pro&ides that Dthe ice/ayor shall be thepresiding o(cerofthe ity ouncil or unicipal Coard in all chartered cities.E

Cased on these laws, Pere#noted that D'A 22F8( does not decree that the &ice/mayor is

a member of the city council or municipal board.E Iecessarily, not being a member, she

could not ha&e any direct and activeparticipation in 5lling the local appointi&e positions in

Iaga.

)irst, A Io. 22F8, the applicable law at that time, did not pro&ide for a similar

pro&ision under the 3 on the 4opos!t!on o t-e s#nn!#n, aside from stating that

the ice/ayor shall be the presiding ocer of the city council or municipal board of

chartered cities. n fact, under A Io. 22F8, the powers of the ice/ayor clearly show

that @ aside from being the presiding ocer of the city council @ he was merely a DsparetireE'10(who could assume the powers of the ayor only in case of the latter#s inability: '11(

Se4t!on 3. ) ) )T-e >!4e*"#or s-#// peror t-e dt!es #nd e)er4!se t-e po9ers ot-e #or !n t-e e:ent o t-e /#tter?s !n#b!/!t to d!s4-#re t-epo9ers #nd dt!es o -!s o=4e. In t-e e:ent o # per#nent :#4#n4!n t-e o=4e o #or, t-e :!4e*#or s-#// be4oe #or or t-e4op/et!on o t-e ne)p!red ter. ) ) )

Second, Pere#resol&ed the )uestion of whether the presiding ocer could :otein

the selection of local appointi&e ocials. n order to resol&e this issue, the ourt hadto

determine whether the presiding ocer was also a member of the municipal boardJcity

council. As pre&iously discussed, the present case does not in&ol&e the #4t!:erole of the

sanggunian as a body, e!ercising discretion whether to fa&orably &ote or notB only the

sanggunian#s p#ss!:erole in accepting the resignation of a sanggunian member is

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in&ol&ed. ecall in this regard that under 9ection

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presiding ocer was included in the determination of the number of members re)uired to

constitute a )uorum. >or emphasis,*amoraresol&ed the issue of whether an absent

regular member should be included in )uorum determinationB it did not rule on the

inclusion of the ice/ayor, as presiding ocer, in the sanggunian membership. The latter

issue is what the ourt now resol&es.

The sanggunian is a collegial body performing se&eral legislati&e and non/legislati&e

functions.'1( Gnder the 3, the &oting re)uirement for an armati&e action on the part of

the sanggunian &aries depending on the particular power to be e!ercised or the measure

to be adopted. The &oting re)uirement could be $i% two/thirds $2J% of all its membersB'14(or

$ii%

two/thirds $2J% &ote of the members present, there being )uorumB'1F(or $iii% three/

fourths $J4% of all its membersB'1=(or $i&% ma"ority &ote of all the membersB'1(or $&i% simply

concurrence of the sanggunian concernedB

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