common legal issues affecting barangay governance

COMMON LEGAL ISSUES affecting BARANGAY GOVERNANCE.By: atty. Erwin M. Enad, MM

Apo View Hotel, Davao City.

Situation…

SK election has been postponed to last Monday of October 2016 (RA 10656).

Can the barangays utilize the 10% SK Fund for projects in 2015?

DILG Memo dated June 1, 2015

Yes. IRR of 10632 in so far as the mechanism for the utilization of the 10% SK funds shall remain effective until such time the IRR for RA 10656 is issued.

DILG Memo dated June 1, 2015

Task Force on Youth Development can utilize the 10% SK Funds in 2015 for projects, programs and activities already identified in the 2014 Youth Dev’t Plan provided that said PPAs were formulated by the TFYD and were integrated in the Barangay Development Plan.

2009 Supreme Court Decision

Naa bay katungod ang mga tao na mamili kung asa siya nga barangay na ma- miyembro or ma-residente?

BRGY SANGALANG V. BRGY MAGUIHAN, 2009 DECISION

FACTS: Barangay Sangalang and Barangay Maguihan of the Municipality of Lemery, Leyte, are claiming that this certain property are within their territorial jurisdiction.

The Certification from Land Management Bureau of DENR states that the subject property is within their territorial jurisdiction of Barangay Maguihan but the people in the area prefer to belong to Barangay Sanggalang.

Brgy. Sangalang v. Brgy. Maguihan, 2009

The area belongs to Barangay Maguihan. But the residents in said area prefer to belong to Barangay Sangalang. Does the decision of the residents or population matter as to which barangay should they belong?

The Supreme Court says that…

The population follows the territory and not vice versa.

The Supreme Court says that…

“It is the determination of the ambit and sphere of the land area as culled in the approved barangay map that determines the jurisdiction of the barangay and not the decision of the populace.”

DENR Map v. Assessor’s Certification

Cadastral Map certified by LMB of DENR (Maguihan) versus Certification of the Provincial Assessor (Sangalang). Which should prevail?

What the Supreme Court says…

The map of the LMB-DENR is controlling. The duty of provincial and municipal assessors is primarily the assessment of taxes and not the survey of lands.

More credence must be given to agency primarily tasked to the survey of lands.

NOV. 2012 SUPREME COURT DECISION

Ang maayo na tomong sa mga barangay officials pwede na ba nga mao lang nga basehan para MAHIMONG LEGAL ang OPISYAL na TRANSAKSYON sa BARANGAY?

Ysidoro vs. People of the Phils.(G.R. No. 192330, November 14, 2012)

Annual Budget of the Municipality appropriated separate funds for Supplemental Feeding Program (SFP) and Core Shelter Assistance Program (CSAP).

Under SFP, the municipality store sacks of rice and boxes of sardines to be given to its intended beneficiaries.


With the desire to help his constituents, Mayor Ysidoro allowed the use of four sacks of rice and two boxes of sardines worth P3, 396.00 to CSAP so that beneficiaries under CSAP will have food for their families.


TAMA BA ANG GIHIMO NI MAYOR NGA IYANG GIGAMIT ANG ANG MGA BUGAS UG SARDINAS UNDER SA FEEDING PROGRAM PARA IHATAG SA MGA BENEFICARIES SA CASH FOR WORK PROGRAM NGA NANGINAHANGLAN UG TABANG?

The Ruling of the Supreme Court

Mayor Ysidoro was CONVICTED of TECHNICAL MALVERSATION. The Sandiganbayan and the Supreme Court held that Mayor Ysidoro applied public property to a public purpose other than that for which it has been appropriated by the ordinance.

PENALTY: Since his action caused no damage or embarrassment to public service, he was fined P1,698.00 or 50% of the sum misapplied.

Defense of the Mayor Ysidoro

He is in good faith. It was the idea of the MSDO. He has consulted the accounting department. He has no criminal intent.

The Supreme Court answers…

It is the commission of an act as defined by the law, and not the character or effect thereof, that determines whether or not the provision has been violated. Hence, malice or criminal intent is completely irrelevant.

BISAYAON TA…

Dili ang EPEKTO sa imong gibuhat kung DILI ANG PAGHIMO SA ISA KA BUHAT nga GINABAWAL sa BALAOD ang rason ngano nga ikaw pwede ma silutan or makasuhan ug TEKNICAL MALVERSATION.

HONORARIUM

Barangay officials are paid in the form of honoraria (DBM LBC 63) and not in the form of salary.

Honorarium is different from a salary. Honorarium is defined by the as something given not as a matter of obligation but in appreciation for services rendered, a voluntary

donation in consideration of services (Santiago vs. Commission on Audit G.R. No. 92284, 12 July 1991), .

Measuring Actual Service in Barangay

Honorarium is measured on Actual Attendance in sessions, which, for administrative convenience, is considered the actual service rendered (DILG Opinion 105, Series of 2000).

The honorarium can, therefore, be divided into two (2) parts, each representing each session (DILG Opinion 54, s. 2009).

Reduction or No Reduction

GENERAL RULE: The honorarium of an elective barangay official, who fails to attend the session for reason other than the performance of public duty, is proportionately reduced corresponding to the numbers of sessions he was absent (DILG Opinion 35 s. 2007)

Exceptions

EXCEPTION NO. 1: No reduction of honorarium if the absence is due to Official Business.

Situation…

A barangay kagawad failed to attend the scheduled barangay session due to health problems.

Is there an automatic deduction to his honorarium?

No automatic deduction on honorarium when the barangay officials concerned who did not attend the session has leave credits.

Situation…

A barangay kagawad failed to attend the scheduled barangay session due to health problems. He doesn’t have leave credits left. Is there an automatic deduction to his honorarium?

In excess of the leave credits allowed by law, barangay officials are not entitled to receive their honoraria.

Exceptions

EXCEPTION NO. 1: No reduction of honorarium if the absence is due to Official Business.

EXCEPTION NO. 2: No deduction on the honorarium if the absence of the elective barangay official can be deducted from his leave credits/benefits.

Joint CSC-DBM Circular No. 1 s. 2004

Maximum 30 leave credits a year for barangay officials.

1.25 leave credits for each REGULAR session attended by elective officials (2.5 per month) or 30 leave credits in a year.

Answer…

Leave credits of barangay officials are cumulated up to one year and commuted yearly.

Question…

Is there a need to PRIORITIZE the allocation for the payment of leave benefits of the barangay officials in the preparation of the Annual Budget of the Barangay?

Joint CSC-DBM Circular No. 1 s. 2004

Payment of leave benefits, being a statutory obligation, must be given priority in the barangay budget subject to PS limitation.

Situation…

The barangay kagawad has been absent for three months now and the barangay has no knowledge of his whereabouts. Is it proper to drop his name from the payroll list?

Answer…

Do not drop his name in the payroll list. That is tantamount to removal without due process.

Include his name in the payroll list but without the corresponding amount (DILG Opinion No. 54 s. 2009).

Situation……

• Only the Punong Barangay and 3 Barangay Kagawads appeared in the session hall during the scheduled regular session. The Punong Barangay and the 3 Barangay Kagawads went home after they were informed that the other Kagawads would not be present. Was there quorum in the said case?

Answer…

Quorum is determined only after ROLL CALL in a session conducted. Quorum is determined by physical presence during a session.

Honorarium …

Those who attended the session are entitled to honoraria corresponding to that particular session.

Those who were not present are not entitled to honoraria corresponding to that particular session (DILG Opinion 61, s. 2010).

WITHOLDING OF HONORARIUM

The withholding of the honorarium of a Sangguniang Barangay member who failed to render actual services due to his unauthorized absences from the sanggunian session cannot be considered willful and malicious considering that the same is allowed under the law (DILG Opinion 54, d. 2009).

Increase in Honorarium

The sangguniang barangay may increase their honoraria but it takes effect during the term of the next set of officials (Do 35 s. 2002).

Increase of honoraria of appointive barangay officials takes effect during their incumbency. This is so because they have no participation in the increase (DO16s2007).

Increase in Honorarium

When increase of honorarium is made by Congress (or DBM), it takes effect immediately (Do 35, s 2002 citing Section 391).

Situation…

There is a change in administration. Are appointive barangay officials of previous administration considered TERMINATED or REMOVED from office when they are not rehired?

Remember this…

There is merely an expiration of their term of office since they are COTERMINOUS or serving at the pleasure of the appointing authority (CSC Opinion dated July 28, 1998; DILG MC 2002-150; DILG Opinion 102 s. 2007).

Situation…

The Punong Barangay died (or resigned) before his term expired.

Is there a need for successor Punong Barangay to remove the barangay secretary if he decides to appoint a new one?

Coterminous…

The death (resignation) of the former punong barangay carries with it the expiration of the term of the barangay secretary.

No need to remove the barangay secretary as her term of office is simply expired upon the death of the punong barangay (DILG Opinion No. 11 s. 2012).

Section 387 (5), LGC

Punong Barangay to appoint or replace the barangay treasurer, secretary and OTHER APPOINTIVE BARANGAY OFFICIALS subject to approval (concurrence) by a majority of all the members of the sangguniang barangay.

Barangay

• The SOLE basis is whether the appointees possess the qualifications and none of the disqualifications (Do17 s, 2008).

legal age; voter; actual resident

Barangay

• Kinahanglan ba nga “registered voter” sa barangay ang usa ka barangay secretary or barangay treasurer?

Qualified Voter v. Registered Voter

“Qualified voter” means the person has all the qualifications to be a voter.


The term “qualified” when applied to a voter does not necessarily mean that a person must be a registered voter (Bautista vs. Comelec, G.R. 15479697, October 23, 2003).


To be elected as punong barangay or barangay kagawad, you must be a registered voter in the barangay where you intend to be elected (Section 39, RA 7160).

To be appointed as barangay secretary or treasurer, you must be a “qualified voter” (Sections 394 and 395 of the Local Government Code).

NON-CONCURRENCE – IF NO BASIS

If the non-concurrence by sangguniang barangay of the appointment is without basis, in fact and in law, they may be opening themselves to possible criminal and administrative cases against them (DILG Opinion 17 s. 2009).

PENDING CONCURRENCE

Pending concurrence, the appointee holds temporary appointment (DILG MC 2002-150). He can now start working.

Question…

Does the Punong Barangay have the power to administer oath?

Limited Power to Administer Oath

The power of the punong barangay to administer oath is limited and confined to matters relating to proceedings in the implementation of the Katarungang Pambarangay (DILG Opinion 88, s. 1995 citing Sections 400 and 420 of the Local Government Code).

Questions…

Does the Punong Barangay have the power to create Barangay Positions?

Question…

Does the Sangguniang Barangay have the power under the Local Government Code to create new barangay positions?

Category of Barangay Positions

Barangay positions created by National Laws.

Elective Barangay Officials (Sec. 387; 389;390 of LGC)

Barangay Secretaries and Treasurers (394;395 of LGC)

Indigenous Peoples Mandatory Representatives (RA 8371)

Category of Barangay Positions

Barangay positions created by sangguniang barangay thru an ordinance:

BHW, BRK, BNS, Day Care Workers, Barangay Clerk, Barangay Driver, Barangay Administrator, etc.

Legal Basis

Under Section 387, the sangguniang barangay may create “such other positions or offices” in accordance with the needs of public service.

The creation is subject to the PS limitations under the Local Government Code.

Questions…

Does the Punong Barangay have the power to create Barangay Positions?

Legal Basis

The Punong Barangay has no authority to create any barangay office or position in the barangay.

The creation of offices in the barangay is granted exclusively granted to the legislative branch or the Sangguniang Barangay (DILG Opinion 30 s. 2012).

Legal Basis

Under Section 387, the Sangguniang Barangay has the sole prerogative of deciding whether or not create new barangay positions (DILG Opinion 30 s. 2012)

Creation is by way of ORDINANCE.

PUBLIC OFFICE

Public office is “the right, authority, and duty created and conferred by law… (Aparri vs. Court of Appeals, 127 SCRA 231)

Qualifications for the Position

Such power to create barangay positions includes the right to prescribe the qualification standards of the positions to be created and the duties, powers and functions of the incumbent (DO 53 s. 2007; DO 43 s. 2008 citing Sec. 396 of the LGC).

Qualifications for the Position

The qualifications, duties, and functions of all other barangay officials… shall be governed… by Barangay Ordinances (Section 396, LGC).

Basic Qualifications of Barangay Functionaries

Legal Age

Voter

Resident of the Barangay

Question…

Is it necessary that the BRK must be resident of your barangay?

Answer…

It depends on the barangay ordinance creating the position of BRK. If it says that BRK must be resident of the barangay, then such requirement is mandatory.

Concurrence – New Position

Requirement of concurrence on APPOINTMENT or REMOVAL of a barangay official depends on the barangay ordinance creating the position (DO 34 S. 2004)

ABOLITION OF BARANGAY POSITIONS

The barangay, by way of an Ordinance, can abolish positions it has created by way of an ordinance.

The barangay cannot abolish positions created by the Local Government Code (Do102, s. 2007)

Question…

Under the Local Government Code, how many BARANGAY TANODS are required to be appointed in every barangay?

Barangay Tanods

The law pegs the number of barangay tanods at maximum 20 members. The law says “not more than 20”.

It did not provide for the minimum but it provides for the maximum.

What Sec. 393 (d) of the Local Government Code says…

“All duly appointed members of the barangay tanod brigades, or their equivalent, which shall number not more than twenty (20) in each barangay…shall be granted…benefits during their incumbency chargeable…”

Question…

PWEDE BA MAKA-APPOINT SI KAPITAN UG IYANG MGA PARENTE SA MGA BARANGAY POSITIONS?

NEPOTISM

General Rule: Rule on Nepotism is not applicable in the barangay. barangay positions are considered non-career positions (DILG Opinion 08, Series of 2005).

NEPOTISM

Exception: Appointment of barangay secretary and treasurer who must not be relative within the 4th degree of consanguinity or affinity to the Punong Barangay (394 and 395.

NEPOTISM

Consanguinity – blood relative. Parents (one degree); bro or sis (2nd degree); uncles (3rd degree); first cousin (4th degree)

Affinity- relationship of the husband to the blood relatives of his wife.

Exercise your mind…

Can the Punong Barangay appoint his Sister-in-Law as Barangay Secretary?

Can the Punong Barangay appoint his First Cousin as Barangay Clerk or Tanod?

Exercise your mind…

Can the Punong Barangay appoint his First Cousin as Barangay Secretary?

Can the Punong Barangay appoint the Son of his First Cousin as Barangay Secretary?

Can punong barangay appoint his BILAS as barangay secretary or treasurer?

Answer…

He can appoint his “bilas” as barangay secretary or treasurer since neither the latter is related by blood to him nor to his wife.

UNDERSTANDING PASS THRU FEES (ILLEGAL FEES)

Question…

May the Sangguniang Barangay impose toll fees for vehicles passing through their barangay?

Allowed Fees…

LGUs may regulate the USE of roads or other facilities through the IMPOSITION OF FEES provided that it is FUNDED and CONSTRUCTED by the local government unit (Section 155, RA 7160).

Question…

May the Sangguniang Barangay impose toll fees upon goods passing through the barangay?

Pass Thru Fees

LGUs are prohibited from imposing taxes, fees and charges and other impositions upon goods passing through their territorial jurisdiction in the guise of tolls (Section 133 (e), RA 7160).

Actual Situation…

Barangay has an ordinance imposing toll fee on vehicles passing through the barangay road owned and operated by the said barangay. The rates for use of the road depends on the types of goods loaded on the vehicle. Does the imposition of fee have legal basis under the Ra 7I60?

Answer…

No. The toll fee imposed is a pass thru fee. It is imposed on the goods loaded on the vehicle and not really on the use of the barangay road (DILG Opinion 19 s. 2012).

Barangay is allowed to impose…

Charges for the operation of public utilities owned, operated and maintained by the LGU within its jurisdiction (Section 154).

Service fees and charges for services rendered, at a reasonable amount (Sec. 153)

Barangay is allowed to impose…

Toll fees for the use of public road FUNDED AND CONSTRUCTED BY THE local government unit concerned (Section 155, RA 7160).

Considered as Illegal Collections…

Those imposed by the LGUs not covered by specific and common taxing powers.

Those imposed under Section 133 of the Local Government Code (pass thru fees)

Those imposed by the LGU absent any ordinance directing the imposition of the same (DILG Opinion 16, s. 2012).

RA 10632 - SK ELECTIONS/FUNDS

SEC. 4. Use of 10% Sangguniang Kabataan Fund. – Until the new set of officials have been duly elected and qualified, the sangguniang barangay shall use the sangguniang kabataan fund SOLELY for youth development programs.

Draft IRR (Use of SK Fund)

SK funds shall be allocated as follows

Capacity Building –

Health Services and Adolescent Repro. Health Program

Out of School Youth Program Socio-cultural and sports development

Disaster Preparedness and Climate Change Adaptation

Other youth-related development projects

MANDATORY IP REPRESENTATION IN THE BARANGAY

Question…

Kinahanglan ba dyud mag census o ihapon ang mga lumad sa barangay para mahibaw-an kung angay butangan ug IP mandatory representative sa sangguniang barangay?

IP REPRESENTATION

There is a need to compute the MINIMUM THRESHOLD of IP population in local government units to allow mandatory representation in the local sanggunians (DILG-NCIP JMC 001 s. 2011).

Formula to determine IP Representation

(1) Population of barangay as used in IRA divided by the number of sanggunian members of the barangay (9 members); or

(2) the ICCs/IPs land area computed at 5% of the total land area of the LGU (Section 3.2).

SAMPLE COMPUTATION

BARANGAY ELIZALDE, MACO, COMVAL

IRA Population/no. of sanggunian members

4275 /9 = 475

475 is minimum number of IPs to comply with the first formula.

SAMPLE COMPUTATION

BARANGAY BANTACAN, NEW BATAAN


3587/9 = 399

Brgy. Bantacan must have at least 399 lumads to comply with the first formula.

SAMPLE COMPUTATION

BARANGAY BACUNGAN, MAGSAYSAY


2328 /9 = 259

259 is minimum number of IPs to comply with the first formula.

Fund Allocations…

Local sanggunians are required to allocate funds in their annual appropriations covering the salaries and appropriate benefits and/or emoluments of the IPMRs (Sec.

11, Title II, NCIP A.O. No. 001-2009; DILG Opinion No. 07 s. 2013 dated February 22, 2013).

LEGITIMACY ISSUE (Selection Process)

It is for the court to resolve the issue of legitimacy of the selection process of the IPMR. The COA issued by the NCIP is presumed to be valid until declared otherwise by a competent court (DILG 20 s. 2012; NCIP-XI Opinion June 12, 2012).

QUESTION…

ADUNA BA TULUBAGON ANG MGA BARANGAY OFFICIALS KUNG DILI SILA MOGAHIN UG BUDGET PARA SA INDIGENOUS PEOPLES REPRESENTATIVE (IPMR) SA SANGGUNING BARANGAY?

LOQUIAS vs. OMBUDSMANG.R. No. 139396. August 15, 2000

The municipality failed to allocate funds in its annual budget the monetary benefits for public health personnel as a mandatory statutory obligation.

Aggrieved employees filed a criminal case against the Mayor, Vice Mayor, Councilors and Budget Officer of the municipality for violation of Section 3 (e) of the RA 3019 or the Anti Graft and Corrupt Practices Act.

DEFENSE OF THE LOCAL OFFICIALS

LACK OF FUNDS of the Municipality

Municipality had incurred an OVERDRAFT

The failure to give salary increases and other Magna Carta benefits were due to circumstances BEYOND THEIR CONTROL and not due to any manifest partiality, evident bad faith or gross inexcusable negligence on their part

Supreme Court Ruling

Office of the Ombudsman-Mindanao found probable cause to conclude that the crime of violation of Section 3 (e) of RA 3019 has been committed by respondents Mayor, Vice-Mayor, members of the Sangguniang Bayan and Budget Officer

Supreme Court affirmed the findings of the Office of the Ombudsman-Mindanao.

Supreme Court Ruling

Supreme Court affirmed the findings of the Office of the Ombudsman-Mindanao that there is a probable cause to conclude that the crime of violation of Section 3 (e) of RA 3019 has been committed by respondents Mayor, Vice-Mayor, members of the Sangguniang Bayan and Budget Officer

Be Guided…

Refusal by the LGU to appropriate in their annual budget the amount considered as statutory obligations is violation of Section 3 (e) of Republic Act 3019, otherwise known as “Anti-Graft and Corrupt Practices Act”. (Loquias v. Sandiganbayan (2000); Gallardo v. People (2005)

Firearms in the Barangay…

• A punong barangay is entitled to possess and carry firearms within is territorial jurisdiction in the performance of his peace and order functions subject to “appropriate rules and regulations” (Section 389, RA 7160).

Firearms in the Barangay…

• The phrase “appropriate rules and regulations” refers to the existing rules and regulations issued by the Philippine National Police (32 s. 2010).

Bureau of Treasury – XI Opinion January 28, 2011

Application for Fidelity Bond of Barangay Treasurer requires the signature of the Punong Barangay, the latter being the “head of the agency”. (citing Bureau of Treasury Circular No. 2-2009)

Application for Fidelity Bond of Punong Barangay requires the signature of the Mayor.

PAHINUMDUM

Dili nato malikayan na ang naandan ang basehan sa pagpadagan sa atong barangay.

PAHINUMDUM

Dili pud nato ikalimod na walay problema kung ang naandan pareho sa balaod. Apan dili tanan nga naandan nagasubay sa pamalaod.

PAHINUMDUM

Kung aduna kitay natun-an karon ug ang atong mga naandan sukwahi sa balaod, atong usbon ang naandan ug dili ang balaod.

PAHINUMDUM

Kung sa makadugay na panahon walay nagreklamo kay naandan man kunohay, dili na nato hulaton ang panahon nga mareklamo ta o makasuhan ta.

PAHINUMDUM

Kay Kung kita makasuhan, dili ta makaingon nga wala ta kabalo na naa diay ing-ana nga balaod kay…

IGNORANCE OF THE LAW

EXCUSES NO ONE.

Reviewer on Local Governance

Includes the latest Supreme Court Decisions and Legal Opinions of DILG on issues affecting local governance.

Question and Answer Format – Reader Friendly.


Used as legal reference material for DILG Officers in various regions nationwide.

Procured by local officials belonging to different leagues (PCL, LNB, PLEASES). Used also by DAP


Authored by Atty. Erwin M. Enad, MM.

Book Foreward by DILG Usec. Austere A. Panadero

Published by Central Law Books – Publisher of SCRA (Quezon City)

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common legal issues affecting barangay governance

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