dilg legal opinions 201133 d196a64f68

7/25/2019 DILG Legal Opinions 201133 d196a64f68

1/4

Republic

of

the

Philippines

DEPARTMENT

OF

THE

INTERIOR

AND

LOCAL

GOVERNMENT

A.

Francisco

Gold

Condominium

ll

Bldg.,

cor

EDSA

Mapagmahal

Street,

Diliman,

euezon Citv

I-MqALSNRVNCfl

DILG

OPINION

NO.

6'

S. 2OIO

24

May

2010

PUNONG

BARANGAY

BENJAMIN

P.

RIVERA

Barangay

Siena,

Quezon

City

Dear

PB

Rivera:

'

This

has

reference

to

your

earlier

letter

addressed

to DllG-euezon

City

Director

Maria

Lourdes

L.

Agustin

asking

that level's

legal

opinion relative

to the

conduct

of

your

sangguniang

barangay's

regular

session

and

the claim

for

honoraria

of

several

sangguniang

barangay

members

thereat.

Thereafter,

City

Director

Agustin

indorsed

your

letter

as

well

as

the

rejoinder

of the majority

of

the

sangguniang Barangay

members

to

this

level

for

appropriate

action

and

summarized

the

issues

as follows:

"I)

Whethetor

not

half

of

the honotarium

of

the ntajority

of

the sangguniang

barangay

members who

were

unable

to

attend

their

g'd

regular

council meeting

(which

was,

nevertheless,

adjourned

due

to lack

of

quorun)

may be legally

withheld by

the

punong

barangay?

Reading

fiom

the

position

of the

concerned

sangganiang

barangay members,

it

is their

contention

that they

sltould

be paid of

theit'

honorarium

considefing

that their

g'd

regular

council session

was adjourned

due to

lack

of quorum.

9)

Whether ot not

the council session called

and

conducted

by

majot'ity

of

the

sanggnniang

members

and

p'esided

by

SK Chairman Lawrence

Ortiz last 95 January eot

o

may be

considered regular

session

in

|ieu of

their 16 January 9O1O regular

session which

was

adjourned due to

lack

ofquorunt?

3) Whether

or

not

Kagawad

Emma Lourdes

C.

De

Jesus

and

Kagawad

Ernesto G.

Gomez,

who

wet'e preventively

suspended

by

the

puezon

City

Council

on

Od January

9olo,

are

entitled

to

half

of

their honorarium due

to the

Stay Order

by the

Ollice

of the

President dated tt

January

9O1O, and was

served by

this

ofrice on

18

Januar

9O1O?

It

Kagawad

contention

PB

Benjamin

P.

Rivera

that

since

Lordes C. De

Jesus

and Kap'awad Etnesto

G,

Gomez wet'e unable

to attend

thei[

two

(9)

regulat'counci]

sessions

for the

month ofJanuary

eoto,

their honorarium

should be

withheld

until final rcsolution of

their suspension."

We shall answer

your

first

and

second

queries

in

one

discussion

since they

pertain

to

one

(1)

subject

matter.

is

the

Emma


2/4

-

t-

..

-

In

.reply

thereto, please

be

informed

that

under

DBM

Local

Budget

circurar

No.

63,

in

reration

to

section

393

of

the

Locar

Government

coJ6-oiigsr

sangguniang

Barangay

Members

are

paid

in

the

form

of

honorarium.

T#

Government Accounting

and

Auditing

uanuar

lcnaM)

defines honorarium

as thar

remuneration

given

to

a

pubric

officiar

for

services

actuaily

rendered.

ln

tne

case

of

Santiago

vs.

COA

(GR

No.

sees4.,

te

JuIy

,nnr1,,,an

honorarium

is

defined

as

something

given

not

as

a

maxer

of

oblrgation

but in

appreciation

for

services

rendered

a voluntary

donation

in

considbration

of

seruties

wnicn

aimii

ii-no

compen:atton

in

money".

with

this,

it

has

been

our

considered

view

that

in

measuring

the

services

actuaily

rendered

by

an

erective

barangay

ornciat,

the

basic

consideration

shall

be

his

attendance

in'regular

and

speciar

sessions.

A regurar

session

is

that

which

has

been

earrier

fixed

as

to

day,

time

and

place,

through

a

Resolution passed by

the

sanggunian concerned on

the first

day

of

the

session

immediatery

foilowing

lne

etecti6i

of its

members

tsection

i)

Ja1,

Lrcal

Government

code

of

1991J.

sangguniang

barangays

are

mandated

to

conduct

two

(2)

regular

sessions

amonth

ebid.).

Since

ihe

day,

time

unJ

pfu."

of the

regular

session

was

arready

fixed

via

a Resorution,

we

are

of the

view

that

a

written

notice

for

the

holding

of such

regular

session

is

no ronger

required.

A

special

session,

on

the

other

hand,

is

that

which

may

be

cailed

by the

local

chief

executive

or

by

a majority

of the

members

of the

sanggunian

when

public

interest

so

demands

t*cfion

iz

61,

torit

oovernment

code

of

tggil.

rn

calling

such

special

sessions,

it

is

required

that

a

written

notice

to

the

mem-bers

shall

be

served

personally

at

the

member's

usual

place

of residence

at least

twenty-four

(24)

hours

before

the

speciar

session

is

herd

(rbid.).

It

bears

to

stress

that-any

session

held

on

a

day

other

than

the

scheduled

dite

of regular

session

is

properly

considered

a

special

session

so

that

it should

comply

witli

the

requirements

set

forth

under

Section

52

(d)

of

the

Code.

should

an erective

barangay

officiar

be

absent

in

a

session

of

the

sangguniang

barangay

for

reasons

other

than

the

performance

of his

public

duty

outside

of

the

office,

such

as attending

to the

problems

of

the

constituents,

he

may

suffer

a

propoftionate

reduction

of his

honoraria.

In

the

case

at hand,

according

to

you,

several

members

of

the

sangguniang

barangay

did

not

attend

your

16 lanuary

2010

regular

session

since

the

notice

for

the

said

session

was

only

given

to

them

on 15

January

2010

and

that

they

had

already

emergenry

appointments

set

on that

session

day.

with

only

you

and

two

(2)

sangguniang

barangay

members

present,

the

aforeiaid 16

January

2010

regular

session

was

adjourned

for

lack

of

quorum.

As

contended

by the

majority

of

your

sangguniang

barangay

members

in

their

rejoinder,

they

should

be

given

their

honoraria

corresponding

to

your

16

January

2010

regular

session since

the

same was

after

all adiourned due

to

lack

of

ouorum.

Applying

the rule

as we

enunciated

above. written

notices

for the

conduct

of a sanggunian's

regular

session

are no longer

required

since

the

date, time

and

place

of

the

regular

session

was

already

previously

fixed

via

a

Resolution.

The

sangguniang

barangay members

cannot

therefore

use

good

faith

(e.g.

short


3/4

-3-

:*i::l

ur

a

defense

for

not

attending

the

sangguniang

barangay,s

regutar

>E)>tu

.

..

Corollary

thereto,

since several sangguniang barangay members

did

not

attend

your

16

ranuary

2010

regurar-iessiori

due

io'n"ir-"r"ig"n.y

appointments,

we

find

the

propoftionate

reduction

of their

respective

non6iiria

to

be

just

proper

if

such

emergency

appointments

are nor

connected

with

the

performance

of

their

public

duty.

The

foregoing

rule

on

the

proportionate

reduction

of

honoraria

is

arso

true

even

if

the

regular

session

was

nevertheless

adjourned

due

to rack

or

quorum.

May

we respectfurry

stress

that

on

16

January

2010,

there

was

stiil

u'reorru,.

session

that

took

place

but

the

same

was

only

adjourned

due

to lack

of

quoium.

This

holding

of

a

regular

session,

though

momeniarily, was corroborated in your

letter

when

you

said

that

"(T)he

chairman

therefore

opened

the

sessiin

ar

2;40PM

with

only

Kagawads

carolina

cruz

and

primitivo

perez,

Jr.

present.

The

secretary

tnformed

the

chairman

that

there

are

only

three

(3)

members

in

the

quorum

inc/uding

the

chairman.

The

chairman

therefore

dec/ared

it

a norr

and

adjourned

the

Session

at 2:4,pM.',There

was

nothing

to

adjourn

if

there

was

no regular

session

that

took

place

in

the first

place.

Fufthermore,

a

quorum

is

defined

under

Section

53 of

the Loca.

Government

code of 1991

as "(A)

majority

or'a// the

members

of

the

sanggunian

who

have

been elected

and

qualified

xxx."

It

is

setUed

that

the

existence

of

a

quorum ts

necessary

in

order

for the

sanggunian

to

transact ofncial

business.

May

it

be remembered

that

the

existence

or

non-existence

of

a

quorum

is

usuallv

determined

after

a

roll

call

of the

members,

which

is

usually

made

before

every

session

starts.

This

attendance

to

session

is

already

suFficient

to

entifle

a

sangguniang

barangay

member

to his

honoraria.

To

hold

that

even

sangguniang

barangay

members

who

did not

attend

the 16

January

2010 regular

seiiion

ari

entitled

to

honoraria

corresponding

to this

particular

regular

session

would

run

counter

to

the

rule

that

honorarium

is

given

only

as

a

remuneration

to

a

public

offlcial for

services

he

actually rendered.

Besides.

it would

be

unfair to

those

sangguniang

barangay

members

who

were

present

and

willing to

pafticipate

in

that

16 January 2010 regular

session

if

even those

who were

absent due to

personal

reasons

are equally

given

their

honoraria.

With

regard

to

your

third

query,

may we

invite

your

attention

to

Sections

68 and 64

of

the

Local

Government

Code of 1991.

to

wit:

*SEICTION

68. Execution

pen&inq

appea.l'.-An

appeal

shall

not

prevent

a

decision from

becoming

final

or executory.

The

respondent

shall be considered

as having

been

placed

under

preventlve

suspenslon

during

the

pendency

of

an

appeal in

the event he

wins

such

appeal.

In

the

event

the

appeal

results

in

an exoneration, he shall

be

paid

his

salary

and

such other

emoluments during the

pendency

of

the

appeal."

(SECTION

64. salaty

of

Respondent

Pending

suspension.-The

respondent

official

preventively

suspended

from

office shall receive

no salary or compensation

during

such

suspension;

but,

upon subsequent

exonefation

and

reinstatement,

he shall be

paid

full salary or

compensation


4/4

including

such

suspension."

-4-

emoluments

accruing during

such

Based

on

the

aforequoted Section

68

of

the

Code,

the respondent

local

elective

official shall

be considered

as having

placed

under

preventive

suspension

during the

pendency

of

his appeal.

Relative thereto, under

Section 64 of

the

Code,

the

respondent local elective

official

preventively

suspended

from

office

shall receive no salary or

compensation during

such

suspension

and

it is

only

upon

his exoneration

and

reinstatement that

he shall be

paid

his

full

salary or

compensation, including

such emoluments accruing

during

such

suspension.

In the

case

at

hand,

while

Sangguniang

Barangay

Members Emma

Lourdes

C.

De Jesus and

Ernesto

G,

Gomez

were

meted the

penalty

of

suspension

(not

preventive

suspension as

indicated

by City

Director Agustin

in

her letter),

they

successfully

obtained

a

Stay Order

from

the

Office

of

the

President.

It

was

by

virtue

of

the

said Stay Order

from

the

Office of the

President that the

implementation

of

their

penalty

of

suspension

was,

in the

meantime,

held

in

abeyance so

that

Sangguniang

Barangay

Members

De lesus

and

Gomez

were

directed to

re-assume their

duties as

sangguniang barangay

members

pending

their

appeal.

Let

it

be

noted that

the

non-implementation

of

the suspension

against

Sangguniang

Barangay Members

De

lesus and

Gomez does

not

automatically

entitle them

too of their

respective honoraria.

They are

still

required to attend

their

sangguniang barangay's regular

and

special

sessions. This is only

proper

since

Sangguniang

Barangay Members

are

paid

in

the

form

of

honorarium,

which

is

defined

as

that

remuneration

given

to

a

public

official

for

services

actually

rendered.

As

we

already explained

above,

in measuring

the

services actually

rendered

by

an elective barangay

official,

the basic

consideration

shall

be his

attendance

in

regular

and

special

sessions.

Thus, a

sanqguniang

barangay

member may

suffer a

proportionate

reduction

of

his honoraria

for

his

failure

to

attend a session

for reasons

other

than

the

performance

of

his

public

duty

outside

of the ofnce,

such

as

attending

to the

problems

of

the constituents.

We hope

this finally

settles

your

concern.

Very

truly

yours,

BY

AUTHORITY

OF

THE

SECRETARY:

Cc:

USEC.

EDUARDO

R. SOLIMAN,

JR.

Undersecretary

for special Constituency

Relations

This

Department

DIR. MARIA

LOURDES

L.

AGUMN

City

Director

DILG,

Quezon

City

Lsl 7

Director

III

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