oversight functions of the...

OVERSIGHT FUNCTIONS

OF THE SANGGUNIAN

By: Atty. Enrique V. dela Cruz, Jr.

Oversight on

Ordinances

Legislative Oversight• SEC. 56. Review of Ordinances by the Sangguniang

Panlalawigan. - (a) Within three (3) days after approval,

the secretary to the sanggunian panlungsod or sangguniang

bayan shall forward to the sangguniang panlalawigan for

review, copies of approved ordinances and the resolutions

approving the local development plans and public

investment programs formulated by the local development

councils.

• (b) Within thirty (30) days after receipt of copies of such

ordinances and resolutions, the sangguniang

panlalawigan shall examine the documents or transmit them

to the provincial attorney, or if there be none, to the

provincial prosecutor for prompt examination.

Legislative Oversight• SEC. 56. Review of Ordinances by the Sangguniang

Panlalawigan. -

• (c) If the sangguniang panlalawigan finds that such an

ordinance or resolution is beyond the power conferred

upon the sangguniang panlungsod or sangguniang bayan

concerned, it shall declare such ordinance or resolution

invalid in whole or in part. The sangguniang panlalawigan

shall enter its action in the minutes and shall advise the

corresponding city or municipal authorities of the action it

has taken.

• (d) If no action has been taken by the sangguniang

panlalawigan within thirty (30) days after submission of

such an ordinance or resolution, the same shall be

presumed consistent with law and therefore valid.

Legislative Oversight

• SEC. 57. Review of Ordinances by the Sangguniang

Panlungsod or Bayan. - (a) Within ten (10) days

after its enactment, the sangguniang barangay shall

furnish copies of all barangay ordinances to the

sangguniang panlungsod or sangguniang bayan

concerned for review as to whether the ordinance is

consistent with law and city or municipal ordinances.

• (b) If the sangguniang panlungsod or

sangguniang bayan, as the case may be, fails to

take action on barangay ordinances within thirty

(30) days from receipt thereof, the same shall be

deemed approved.

Legislative Oversight

• SEC. 57. Review of Ordinances by the Sangguniang

Panlungsod or Bayan. - (c) If the sangguniang

panlungsod or sangguniang bayan, as the case

may be, finds the barangay ordinances inconsistent

with law or city or municipal ordinances, the

sanggunian concerned shall, within thirty (30)

days from receipt thereof, return the same with

its comments and recommendations to the

sangguniang barangay concerned for

adjustment, amendment, or modification; in

which case, the effectivity of the barangay

ordinance is suspended until such time as the

revision called for is effected.

• Q: May the Sanggunian declare a local

ordinance under review as void and illegal?

• A: NO.

• The only ground upon which a provincial board

may declare any municipal resolution, ordinance,

or order invalid is when such resolution,

ordinance, or order is 'beyond the powers

conferred upon the sanggunian making the

same.'

• Absolutely no other ground is recognized by the

law.

• Moday v. CA, Feb 20, 1997; DILG Opinion No. 3-

2005 (January 21, 2005)

• Q: May the Sanggunian exceed the 30-day period of

review because of time spent in referral to its committee

or legal office?

• A: NO.

• The Sanggunian is required to take action on the ordinance

on review within thirty (30) days after its submission.

• The phrase "take action" should be construed as either

approval or disapproval of the ordinance and not just any

other action of the reviewing sanggunian, such as referral to

a committee.

• After the lapse of such period, and no official and/or formal

document, such as a resolution, was issued by the

Sanggunian, it can be validly stated that the Sanggunian

failed to act within thirty (30) days and the ordinance or

resolution under review can be presumed consistent with law

and therefore valid. [DILG Opinion No. 19-2009 (April 28,

2009)] DILG Opinion No. 62-2012 (November 7, 2012)]

Oversight on the

Local Budget

Review of Appropriation Ordinance

• "SEC. 327. Review of Appropriation

Ordinances of Component Cities and Municipalities.

— The sangguniang panlalawigan shall review the

ordinance authorizing annual or supplemental

appropriations of municipalities in the same manner

and within the same period prescribed for the review

of other ordinances.

• If within ninety days (90) within receipt of copies

of such ordinance, the sangguniang panlalawigan

takes no action thereon, the same shall be

deemed to have been reviewed in accordance with

law and shall continue to be in full force and

effect.


• "SEC. 327. Review of Appropriation

Ordinances of Component Cities and

Municipalities.

• The sangguniang panlalawigan shall within the

same 90-day period advise the … sangguniang

bayan concerned through the local chief executive

of any action on the ordinance under review.

• Upon receipt of such advice, the . . . municipal

treasurer concerned shall not make further

disbursements of funds from any of the items of

appropriate declared inoperative, disallowed or

reduced.


• SEC. 333. Review of the Barangay

Budget. - (a) Within ten (10) days from

its approval, copies of the barangay

budget shall be furnished the sangguniang

panlungsod or the sangguniang bayan, as

the case may be.

• If within sixty (60) days after the receipt

of the ordinance, the sanggunian

concerned takes no action thereon, the

same shall continue to be in full force and

effect.


• SEC. 333. Review of the Barangay Budget. - (b) Within

the 60-day period, the sangguniang panlungsod or

sangguniang bayan concerned shall return the barangay

budget to the punong barangay with the advice of action

thereon for proper adjustments, in which event, the barangay

shall operate on the ordinance authorizing annual

appropriations of the preceding fiscal year until such time

that the new ordinance authorizing annual appropriations

shall have met the objections raised.

• Upon receipt of such advice, the barangay treasurer or

the city or municipal treasurer who has custody of the

funds shall not make further disbursement from any

item of appropriation declared inoperative, disallowed,

or reduced.

Who prepares the budget?

• The Local Development Council (LDC) preparesthe Local Development Plan (LDP) (Section 109, LGC);

• The sanggunian will then approve or disapprovethe LDP thru a Resolution (Section 114, LGC);

• The LDP will then be submitted to the mayor, whomay approve or veto the same (Section 55, LGC);

• The approved LDP will then be submitted to theLocal Finance Committee (LFC) for budgetpreparation (Art. 410, IRR, LGC);

• The proposed budget will be submitted by the localchief executive to the sanggunian for enactmentinto an ordinance. (Section 316, LGC) (DILG Opinion No. 137-2003)

Can the Sanggunian reduce the

proposed budget?

• Article 415 of the IRR states that: "the localsanggunian may not increase the proposedamount in the executive budget nor include newitems except to provide for statutory andcontractual obligations but in no case shall itexceed the total appropriations in the executivebudget".

• Considering that the only prohibition is against anyincrease, the sanggunian may reduce theexecutive budget proposed by the LCE, provided,however, that the requirements as well as thegeneral limitations in the use of govt fundsprovided for under Sections 324 and 325 of theCode are complied with.

Is there any penalty for an LCE who fails

to prepare and submit the annual budget

on time?

• Yes. Pursuant to Sec. 318 of R.A. No.

7160, an LCE who fails to submit the

budget on or before October 16 of

the current year shall be subject to

such criminal and administrative

penalties as may be provided by the

Local Government Code and other

applicable laws.

What is the period for enactment of the

annual budget (Re-enacted Budget)

• Under Section 323 of the LGC, If the sanggunian failsto enact the annual budget after ninety (90) daysfrom the beginning of the fiscal year, the ordinanceauthorizing the appropriations of the preceding yearshall be deemed reenacted and shall remain in forceand effect until the ordinance authorizing the proposedappropriations is passed by the sanggunianconcerned.

• However, only the annual appropriations for salariesand wages of existing positions, statutory andcontractual obligations, and essential operatingexpenses authorized in the annual and supplementalbudgets for the preceding year shall be deemedreenacted and disbursement of funds shall be inaccordance therewith.

Effectivity of Budget

• Section 320 of the LGC, provides that:

• The ordinance enacting the annual budget shall

take effect on the ensuing calendar year.

• An ordinance enacting a supplemental budget,

however, shall take effect upon its approval or on

the date fixed therein.

• The review of the budget by the sangguniang

panlalawigan is not a requisite for validity or

effectivity. (DILG Opinion No. 90-2000 dated 21 August 2000)

Supplemental Budget

• No ordinance providing for a supplemental budgetshall be enacted except:

• (a) when supported by funds actually available ascertified by the local treasurer, which shall refer tothe amount of money actually collected during agiven fiscal year that is over and above the realizedestimated income of that year; or

• (b) in times of public calamity by way of budgetaryrealignment to set aside appropriations for thepurchase of supplies and materials or the paymentof services which are exceptionally urgent orabsolutely indispensable to prevent imminentdanger to, or loss of, life or property, in thejurisdiction of the LGU or in other areas declared ina state of calamity by the President. (Art. 417, IRR).

Intelligence Fund

• Section 325(h) of RA 7160 provides in part that". . . annual appropriations for discretionarypurposes of the local chief executive shallnot exceed two percent (2%) of the actualreceipts derived from basic real property taxin the next preceeding calendar year.

• Pursuant to DILG Memorandum Circular No.99-65 to determine the amount to be utilizedfor intelligence and confidential purposes, itshall be based on the: (a) 30% of the peaceand order allocation, or 3% of the annualappropriations, whichever is lower. "

• Q: May the Sanggunian modify or reduce a

local budget ordinance under review?

• A: YES.

• Expressly included in the sanggunian’s power to

review the local budget ordinance of a lower LGU

is the clipping power to disallow or reduce

accordingly and even declare the ordinance

inoperative in part or in its entirety if the

appropriations are found to be excess of the

amounts prescribed or if it does not comply with

budgetary requirements and limitations under the

law.

• DILG Opinion No. 101-1995 (August 31, 1995)

• Q: What are the grounds or questions that the reviewing

Sanggunian can use to assail a local budget under

review?

• A: Sec. 325, LGC

• The total appropriations, whether annual or supplemental,

for personal services of a local government unit for one (1)

fiscal year shall not exceed forty-five percent (45%) in the

case of first to third class provinces, cities and municipalities,

and fifty-five percent (55%) in the case of fourth class or

lower, of the total annual income from regular sources

realized in the next preceding fiscal year.

• The appropriations for salaries, wages, representation and

transportation allowances of officials and employees of the

public utilities and economic enterprises owned, operated,

and maintained by the local government unit concerned shall

not be included in the annual budget or in the computation of

the maximum amount for personal services.

• Q: What are the grounds or questions that the

reviewing Sanggunian can use to assail a local

budget under review?

• A: Sec. 325, LGC

• No official or employee shall be entitled to a salary rate

higher than the maximum fixed for his position or other

positions of equivalent rank by applicable laws or rules

and regulations issued thereunder;

• The creation of new positions and salary increases or

adjustments shall in no case be made retroactive; and

• The annual appropriations for discretionary

purposes of the local chief executive shall not

exceed two percent (2%) of the actual receipts

derived from basic real property tax in the next

preceding calendar year.

• Q: What are the grounds or questions that the reviewing

Sanggunian can use to assail a local budget under

review?

• A: Sec. 324, LGC

• The aggregate amount appropriated shall not exceed the

estimates of income;

• Full provision shall be made for all statutory and contractual

obligations of the local government unit concerned:

Provided, however, That the amount of appropriations for

debt servicing shall not exceed twenty percent (20%) of

the regular income of the local government unit

concerned;

• Five percent (5%) of the estimated revenue from regular

sources shall be set aside as an annual lump appropriation

for unforeseen expenditures arising from the occurrence of

calamities.

• Q: What are the restrictions on disbursement of Funds?

• A:

• SEC. 335. Prohibitions Against Expenditures for Religious or

Private Purposes. - No public money or property shall be

appropriated or applied for religious or private

purposes.

• SEC. 337. Restriction Upon Limit of Disbursements. -

Disbursements in accordance with appropriations in the

approved annual budget may be made from any local fund in

the custody of the treasurer, but the total disbursements

from any local fund shall in no case exceed fifty percent

(50%) of the uncollected estimated revenue accruing to

such local fund in addition to the actual collections: Provided,

however, That no cash overdraft in any local fund shall be

incurred at the end of the fiscal year.

• Q: What are the restrictions on disbursement of Funds?

• A:

• SEC. 338. Prohibitions Against Advance Payments. - No

money shall be paid on account of any contract under which

no services have been rendered or goods delivered.

• SEC. 339. Cash Advances. - No cash advance shall be

granted to any local official or employee, elective or

appointive, unless made in accordance with the rules and

regulations as the Commission on Audit may prescribe.

• SEC. 343. Prohibition Against Expenses for Reception

and Entertainment. - No money shall be appropriated,

used, or paid for entertainment or reception except to the

extent of the representation allowances authorized by law or

for the reception of visiting dignitaries of foreign

governments or foreign missions, or when expressly

authorized by the President in specific cases.

• Q: What are the restrictions on disbursement of

Funds?

• A:

• SEC. 344. Certification on, and Approval of, Vouchers. -

No money shall be disbursed unless the local

budget officer certifies to the existence of

appropriation that has been legally made for the

purpose, the local accountant has obligated said

appropriation, and the local treasurer certifies to the

availability of funds for the purpose.

• Vouchers and payrolls shall be certified to and

approved by the head of the department or office who

has administrative control of the fund concerned, as to

validity, propriety, and legality of the claim involved.

• Q: Can the local chief executive declare savings and

transfer it to augment other expenses (DAP)?

• A: NO.

• SEC. 336. Use of Appropriated Funds and Savings. -

Funds shall be available exclusively for the specific

purpose for which they have been appropriated.

• No ordinance shall be passed authorizing any

transfer of appropriations from one item to another.

• However, the local chief executive or the presiding

officer of the sanggunian concerned may, by

ordinance, be authorized to augment any item in the

approved annual budget for their respective offices from

savings in other items within the same expense class of

their respective appropriations.

• Q: How can the Sanggunian monitor that the funds

are properly disbursed?

• A:

• SEC. 346. Disbursements of Local Funds and

Statement of Accounts. - Disbursements shall be

made in accordance with the ordinance authorizing

the annual or supplemental appropriations without

the prior approval of the sanggunian concerned.

• Within thirty (30) days after the close of each

month, the local accountant shall furnish the

sanggunian with such financial statements as

may be prescribed by the Commission on AuditIn

the case of the year-end statement of accounts, the

period shall be sixty (60) days after the thirty-first

(31st) of December.

• Q: Who will be held liable for improper

disbursement of funds?

• A:

• "SEC. 340. Persons accountable for Local

Government Funds. — Any officers of the local

government unit whose duty permits or requires the

possession or custody of local government funds shall

be accountable and responsible for the safekeeping

thereof in conformity with the provisions of this Title.

• Other local officers who, though not accountable by

the nature of their duties, may likewise be similarly

held accountable and responsible for local

government funds through their participation in the

use or application thereof ." (Emphasis supplied)



• A:

• SEC. 342. Liability for Acts Done Upon Direction of

Superior Officer, or Upon Participation of Other

Department Heads or Officers of Equivalent Rank. –

• Unless he registers his objection in writing, the local

treasurer, accountant, budget officer, or other

accountable officer shall not be relieved of liability for

illegal or improper use or application or deposit of

government funds or property by reason of his having

acted upon the direction of a superior officer, elective or

appointive, or upon participation of other department

heads or officers of equivalent rank.



• A:

• SEC. 342. Liability for Acts Done Upon Direction of

Superior Officer, or Upon Participation of Other

Department Heads or Officers of Equivalent Rank. –

• The superior officer directing, or the department

head participating in such illegal or improper use or

application or deposit of government funds or

property, shall be jointly and severally liable with

the local treasurer, accountant, budget officer, or

other accountable officer for the sum or property so

illegally or improperly used, applied or deposited.

Internal Oversight

Sanggunian Committees

• The manner of selecting the Chairman

and Members of various committees is

through election. (Sec. 50, LGC)

• The majority can prepare a list and the

sanggunian can vote to approve it,

provided this is indicated in the IRP.• DILG Opinion No. 112-98 (09-07-1998)

Can the vice mayor chair a committee?

• NO.

• The vice-mayor may chair a special

committee created for a special

purpose (DILG Opinions Nos. 243-

1992; 156-1994) but cannot head a

regular committee. (DILG Opinions

Nos. 243-1992; 29-1993)

What is quorum?

• “A majority of all the

members of the sanggunian

who have been elected and

qualified shall constitute a

quorum to transact official

business…” (Section 53, LGC)

What is meant by “majority”?

• 50% plus one of the entire

membership of the sanggunian;

• The closest number to more

than one-half of the total

membership of the sanggunian;

(La Carlota City vs. Atty. Rex Rojo,

G.R. No. 181367, April 24, 2012)

Is the vice-mayor included in the

determination of quorum?

• Yes. The Vice Mayor is a member of

the sanggunian.

• He will thus be included in the total

number of sanggunian members for

purposes of determining quorum.(DILG Opinion No. 28-2000, dated 17 April 2000;

La Carlota City vs. Atty. Rex Rojo, G.R. No.

181367, April 24, 2012)

Determining Quorum

• 19 members = 19/2 = 9.5 + 1 = 10.5

• The quorum for a sanggunian with

19 members is therefore “10”

• 11 members = 11/2 + 1 = 6.5

• The quorum for a sanggunian with

11 members is therefore “6” (DILG

Opinion No. 60-2004, dated 19 July

2004)

Vote Required in Sessions

• Ordinary measures shall be

decided by a simple majority of

the members present at any

meeting there being a quorum.

• (DILG Opinions Nos. 26-1996;

183-1994)

Two-Thirds (2/3) Vote Required

• Extending Loans or entering intocontracts;

• Issuance of bonds or securities;

• Authorizing the lease of publicproperty;

• Grant of franchises;

• Creation of LGU liability orindebtedness; (DILG Opinion No. 107-2003, dated 15 August 2003)

Two-Thirds (2/3) Vote Required

• Over-ride the veto of the Mayor;

• Grant of Tax exemptions;

• Levy of taxes;

• Discipline / suspend a member of the sanggunian;

• Opening or closing of roads;

• Selection and transfer of gov’t site or offices;

• Concurrence in the appointment of personnel; (DILG Opinion No. 107-2003, dated 15 August 2003)

Vice-Mayor as Presiding Officer

• Being the presiding officer of the council, avice-mayor is considered a regular memberof the local legislative council concerned,(DILG Opinion Nos. 138, 342 - 1992; 81-1995)

• But a vice-mayor acting as mayor cannotpreside over the council until the mayor re-assumes his/ her position since this willviolate the local separation of powers.(Gamboa v. Aguirre)

• In such situation, the senior councilor maypreside. (DILG Opinions Nos. 142, 174 - 1994)

Presiding Officer as member

• As presiding officer, he can only vote to breaka tie;

• As a member, he may participate in thedeliberations, vote, sponsor or co-author a billor chair a special committee.

• He/ she may temporarily relinquish his/ herchair -- as presiding officer -- to the majorityfloor leader or to any sanggunian member.(DILG Opinion No. 65-1995)

• If he will participate in the session as amember, he may choose the temporarypresiding officer. (DILG Opinions Nos. 29, 132 -1993)

Temporary Presiding Officer

• In case of temporary absence of thepresiding officer, the members presentand constituting a quorum shall electfrom among themselves a temporarypresiding officer.

• He shall certify within 10 days from thepassage of ordinances / resolutionsadopted by the sanggunian in thesession over which he temporarilypresided.(Art. 102-IRR, LGC)

Permanent vacancy: Presiding Officer

• In case of permanent vacancy inthe position of vice mayor, thehighest ranking sanggunianmember will succeed as vicemayor /presiding officer.

• The vacancy shall be filled by theother members of the sanggunianin accordance to their ranking.(Section 44, LGC)

Permanent vacancy: sanggunian

• In case the permanent vacancy wascaused by a member who belongs to apolitical party, the party will nominateand the president will appoint thereplacement;

• If he does not belong to any politicalparty, the other members of thesanggunian will nominate and thepresident will appoint thereplacement. Section 45, LGC

Sanggunian Secretary

• The secretary to the sanggunian is a

career public official with rank and salary

equal to a head of a department. (DILG

Opinions Nos. 91, 253, 286 - 1992; 78-

1995;)

• A sanggunian secretary shall

automatically continue in office despite

the lapse of 3-year terms of elective

officials unless otherwise removed for

cause. (DILG Opinion No. 176-1992)

Appointment of Sanggunian Secretary

• It is the vice mayor, not the mayor,

who is authorized to appoint the

secretary to the sanggunian (CSC En

Banc Resolutions Nos. 94-7153

December 29, 1994, 92-111 August 20,

1992; DILG Opinions Nos. 348-1992; 7,

155, 236, 245 - 1993; 85-1995) with

the concurrence of the sanggunian

concerned. (DILG Opinion No. 8-1995)

Temporary vacancy: Mayor

• A mayor may designate in writing an

officer-in-charge (e.g. councilor, any

appointive official or employee) to assume

the office but only for three (3) days.

• On the 4th day, the vice-mayor assumes

the post regardless of the nature of the

absence of the mayor. (DILG Opinions Nos. 22,

30, 87-A - 1993; 52, 53 - 1994)

• Henceforth, the designation of the officer-in-

charge ceases. (DILG Opinion No. 87-A – 1993)

Powers: Acting Mayor

• A vice-mayor acting as mayor possesses the

powers incidental to the office, including the

authority to solemnize marriages, during the

period of temporary incapacity (DILG

Opinion No. 25-1994)

• An acting mayor can exercise the power

to appoint and to discipline only after the

lapse of 30 working days from the time

the mayor is temporarily incapacitated.(CSC En Banc Resolution Nos. 94-0959 February 15,

1994, 94-6892 December 20, 1994)

Acting Mayor CANNOT:

• administer oaths (DILG Opinion No. 136-1994);

• the power to approve or disapprove ordinances

and resolutions enacted by the council (DILG

Opinion No. 149-1993);

• preside over council sessions (DILG Opinions

Nos. 270-1992; 142, 174 -1994);

• appoint, suspend or dismiss employees within

30 days except when the cause of the

temporary incapacity of the mayor is suspension

for more than 30 days.

Is the signature of the Vice mayor on an

enacted ordinance necessary?

• No. Section 469 (c)(3) of the LGCprovides that enacted ordinancesmust be certified by the presidingofficer before they are submittedto the mayor for his approval.

• However, any presiding officermay certify an enacted ordinance.(DILG Opinion No. 16-2005, dated 15 Feb. 2005)

May an ordinance become valid even

without the signature of the mayor?

• Yes. If he fails to act on an

ordinance submitted to him for

his review within 10 days from

his receipt thereof;

• When the sanggunian overrides

the veto of the mayor by 2/3 vote.

(DILG Opinion No. 22-2003, dated 27 Feb. 2003)

OVERSIGHT ON

POLICE POWER

• Q: Can the Mayor be compelled by writ of Mandamus to

issue a business permit?

• A: NO.

• A mayor cannot be compelled by mandamus to issue a

business permit since the exercise of the same is a

delegated police power hence, discretionary in nature.

• Section 444(b)(3)(iv) of the Local Government Code of

1991, whereby the power of the respondent mayor to issue

license and permits is circumscribed, is a manifestation of

the delegated police power of a municipal corporation.

• Necessarily, the exercise thereof cannot be deemed

ministerial. As to the question of whether the power is validly

exercised, the matter is within the province of a writ of

certiorari, but certainly, not of mandamus.

• RIMANDO V. NAGUILAN EMISSION TESTING CENTER,

G.R. NO. 198860. JULY 23, 2012

SAMPLE PROBLEM

An aggrieved resident of the City of Manilafiled mandamus proceedings against the citymayor and the city engineer to compel theseofficials to remove the market stalls from certaincity streets which they had designated as fleamarkets.

Portions of the said city streets were leased orlicensed by the respondent officials to marketstallholders by virtue of a city ordinance. Decidethe dispute.

Suggested Answer:

The petition should be granted.

In accordance with Macasiano v.

Diokno. 212 SCRA 464 [1992], since

public streets are properties for public

use and are outside the commerce of

man, the City Mayor and the City

Engineer cannot lease or license

portions of the city streets to market

stallholders.

May an LGU prescribe a central terminal for

public utility vehicles within its territory?

• No. Since the compulsory use of the

terminal would subject the users thereof

to fees, rentals and charges, such

measure is unduly oppressive.

• Lucena Grand Central Terminal, Inc. v.

JAC Liner, Inc., 452 SCRA 174 (2005)

May an LGU regulate the subscriber rates charged by

CATV operators within its territorial jurisdiction?

• No. Regulation of CATV subscriber

rates is lodged in the NTC, not LGU’s.

• LGUs, likewise, have no authority to

grant franchises for such undertakings.

• Batangas CATV, Inc. v. Court of

Appeals, 439 SCRA 326 (2004)

May an LGU enact an ordinance to phase out

motels, night clubs, and other establishments to

protect public morals?

• NO. Businesses may only be regulated but cannot altogether be prohibited.

• Simply because there are no ‘pure’ places where there are impure men.”

• That these motels and clubs are used as venues for prostitution is of no moment. sexual immorality may take place in the most innocent of places

• City of Manila v. Laguio, Jr., 455 SCRA 308 (2005)

May an LGU regulate the short time periods and wash rates

of motels, to protect public morals?

• NO. “Individual rights may be adversely affected only to the

extent that may fairly be required by the legitimate demands

of public interest or public welfare.

• However well-intentioned the Ordinance may be, it is in

effect an arbitrary and whimsical intrusion into the rights of

the establishments as well as their patrons.

• The Ordinance needlessly restrains the operation of the

businesses of the petitioners as well as restricting the rights

of their patrons without sufficient justification.

• The Ordinance rashly equates wash rates and rentingout a

room more than twice a day with immorality without

accommodating innocuous intentions.

• White Light Corp., vs. City of Manila, 576 SCRA 416 (2009)

May an LGU validly use public funds to undertake the

widening, repair and improvement of the sidewalks of

a privately-owned subdivision?

• In May 1999, the City of Marikina undertook a public works

project to widen, clear and repair the existing sidewalks of

Marikina Greenheights Subd.

• It was assailed as an illegal use of public funds.

• The SC ruled that subdivision streets belong to the owner

until donated to the government or until expropriated upon

payment of just compensation.

• The use of LGU funds for the widening and improvement of

privately-owned sidewalks is unlawful as it directly

contravenes Section 335 of RA 7160.

• Albon v. Fernando, 494 SCRA 141 (2006)

LGU Power to Grant License to Cockpits

• It is the sanggunian bayan concerned alone which has the

power to authorize and license the establishment, operation

and maintenance of cockpits, and regulate cockfighting and

commercial breeding of gamecocks within its territorial

jurisdiction.

• Nevertheless, while the sanggunian retains the power to

authorize and license the establishment, operation, and

maintenance of cockpits, its discretion is limited in that it

cannot authorize more than one cockpit per city or

municipality, unless such cities or municipalities have a

population of over one hundred thousand, in which case two

cockpits may be established.

• Tan v. Pereña, 452 SCRA 53 (2005)

Can the Governor Issue Small-Scale Mining Permits?

• NO. Pursuant to Republic Act No. 7076, which took effect on

18 July 1991, approval of the applications for mining permits

and for mining contracts are vested in the Provincial/City

Mining Regulatory Board.

• Composed of the DENR representative, a representative

from the small-scale mining sector, a representative from the

big-scale mining industry and a representative from an

environmental group, this body is tasked to approve small-

scale mining permits and contracts.”

• Considering that the governor is without legal authority to

issue said mining permits, the same permits are null and

void.”

• Calanza v. Paper Industries Corporation of the

Philippines (PICOP), 586 SCRA 408 (2009)

Consultation and Sanggunian

Approval for Infrastructure projects

• “Section 27 – Prior Consultations

Required --- No project or program

shall be implemented by government

authorities unless the consultations

mentioned in Sections 2(c) and 26

hereof are complied with, and prior

approval of the sanggunian

concerned is obtained…”

Can a Sanggunian prohibit the

operation of Lotto in their LGU?

• NO. Section 27 of the LGC applies only to national

programs and/or projects which are to be

implemented in a particular local community.

• Lotto is neither a program nor a project of the

national government, but of a charitable institution,

the PCSO.

• Besides, the PCSO charter is statute. An

ordinance cannot amend or modify a statute.

• Lina vs. Pano, 364 1 SCRA 76 (2001)

If the MMDA seeks to establish a sanitary landfill

in an LGU, is the prior approval of the

Sanggunian Bayan required?

• YES. Section 27 of the LGC mandates two

requisites that must be met before a national

project that affects the environmental and

ecological balance of local communities can be

implemented: prior consultation with the affected

local communities, and prior approval of the project

by the appropriate sanggunian.

• Absent either of these mandatory requirements,

the project’s implementation is illegal.”• Province of Rizal v. Executive Secretary, 477 SCRA 436 (2005)

Q: The Province of Aklan intends to develop the port

in Caticlan, is the prior approval of the Sanggunian

Bayan required?

• YES. “Section 27 of the LGC establishes the

duties of national government agencies and

provincial governments in the maintenance of

ecological balance, and requires them to

secure prior public consultation and

approval of local government units for the

projects described therein.

• Boracay Foundation, Inc. v. Province of

Aklan, G.R. No. 196870. June 26, 2012

EMINENT

DOMAIN

EMINENT DOMAIN

1. An expropriation suit is incapable of pecuniary

estimation. Barangay San Roque v. Heirs of Pastor,

334 SCRA 127 (2000)

2. Section 19 of the LGC requires an ordinance, not a

resolution, for the exercise of eminent domain.

Suguitan v. City of Mandaluyong, 328 SCRA 137

(2000)

3. A valid and definite offer to acquire the property is

necessary prior to the exercise of the power of

eminent domain. The offer must not be accepted.

Jesus is Lord Christian School Foundation, Inc. vs.

Municipality of Pasig, GR 152230, August 9, 2005

Procedure for Eminent Domain

• The land must be a private property;

• It must be for a public purpose;

• There must be genuine necessity;

• There must be a previous valid and definite offer to buy the private property in WRITING. It shall specify the property sought to be acquired, the reasons for the acquisition, and the price offered.

• The offer is denied or rejected;

Procedure for Eminent Domain

• If the owner rejects the offer, the LGU can then

file a complaint for expropriation in the RTC.

• The LGU must then deposit the amount

equivalent to 15% of the fair market value of

the property to be expropriated based on its

current tax declaration.

• The LGU may then enter the property.

• The Court will determine the amount of just

compensation for the property expropriated.

May an LGU expropriate a property for the benefit of a

specific homeowners association?

• NO. A local government unit cannot use the power of

eminent domain to expropriate a property merely for the

purpose of providing a sports and recreational facility to a

small group of persons, such as those belonging to

homeowners’ association.

• “Where the taking by the State of private property is done

for the benefit of a small community which seeks to have its

own sports and recreational facility, notwithstanding that

there is such a recreational facility only a short distance

away, such taking cannot be considered to be for public

use. Its expropriation is not valid.”

• Masikip v. City of Pasig, 479 SCRA 391 (2006)

May an LGU expropriate a property to provide a

right-of-way to a specific community?

• In this case, a barangay sought to expropriate private lands

to secure a right-of-way for residents of a subdivision.

• The SC declared that the failure of the subdivision owner to

provide an access road does not shift the burden to

barangay itself.

• To deprive the private persons of their property instead of

compelling the subdivision owner to comply with its

obligation under the law is an abuse of the power of eminent

domain and is patently illegal, which misuse of public funds

for a private purpose could amount to a possible case of

malversation.

• Barangay Sindalan, San Fernando, Pampanga v. Court

of Appeals, 518 SCRA 649 (2007)

May an LGU alter the zoning classification of a

portion of its territory and order the transfer of

businesses located therein?

• Yes. The power to establish zones for

industrial, commercial and residential uses is

derived from the police power itself and is

exercised for the protection and benefit of

the residents of a locality.

• Social Justice Society v. Atienza, Jr., 517

SCRA 657 (2007) and 545 SCRA 92 (2008)

• Q: May an LGU Reclassify an agricultural land to non-

agricultural use?

• A: Yes. Under ARTICLE 38, IRR of LGC: — (a) A city or

municipality may reclassify agricultural lands through an

ordinance enacted by the sanggunian after conducting public

hearings for the purpose provided that there exists an

approved zoning ordinance implementing its

comprehensive land use plan.

• (b) Agricultural lands may be classified in the following

cases:

• (1) When land ceases to be economically feasible and

sound for agricultural purposes as determined by the

Department of Agriculture; or

• (2) Where the land shall have substantially greater

economic value for residential, commercial, or industrial

purposes as determined by the sanggunian.

• Q: May an LGU Reclassify an agricultural land to

non-agricultural use without limits?

• A: NO.

• ARTICLE 39. Limitations. — (a) Reclassification

shall be limited to the following percentage of the

total agricultural land area at the time of the

passage of the ordinance:

• (1) For highly-urbanized and independent

component cities, fifteen percent (15%);

• (2) For component cities and first to third class

municipalities, ten percent (10%); and

• (3) For fourth to sixth class municipalities, five

percent (5%).

• Q: May an LGU Reclassify and convert an

agricultural land to non-agrcultural use without DAR

Approval?

• A: NO.

• It was held in the case of Chamber of Real Estate &

Builders Assoc. v. Sec. of Agrarian Reform, G.R. No.

183409 , 18 June 2010, that:

• Conversion and reclassification differ from each other.

Conversion is the act of changing the current use of a

piece of agricultural land into some other use as

approved by the DAR while reclassification is the act of

specifying how agricultural lands shall be utilized for

non-agricultural uses such as residential, industrial, and

commercial, as enacted by the Sanggunian.

• Q: May an LGU Reclassify and convert an

agricultural land to non-agrcultural use

without DAR Approval?

• A: NO.

• It was held in the case of Chamber of Real

Estate & Builders Assoc. v. Sec. of Agrarian

Reform, G.R. No. 183409 , 18 June 2010, that:

• A mere reclassification of an agricultural

land does not automatically allow a

landowner to change its use.

• He has to undergo the process of conversion

under DAR Rules before he is permitted to use

the agricultural land for other purposes.

TAXATION

• Q: What are the kinds of Local Tax

Ordinances?

• A:

• 1. Those imposing a fee or tax specifically

authorized by the Local Government Code for

the local government units to impose.

• 2. Those imposing a fee or tax not specifically

enumerated under the LGC or taxed under

the provisions of the NIRC or other applicable

laws (Sec. 186, LGC)

• Q: Who determines the legality or propriety of a

local tax ordinance or revenue measure?

• A: It is the Secretary of Justice who shall determine

questions on the legality and constitutionality of

ordinances or revenue measures.

• The appeal must be filed within thirty (30) days

from the effectivity of the tax ordinance.

• The Secretary of Justice has sixty (60) days from the

date of receipt of the appeal to issue a ruling;

otherwise, the aggrieved party may file appropriate

proceedings with a court of competent jurisdiction

(RTC).

• The appeal shall not have the effect of

suspending the effectivity of the ordinance. (Sec.

187 R.A. 7160)

• Q: What are the requisites of a valid tax ordinance?

• A:

• 1. The procedure applicable to local government

ordinances in general should be observed. (Sec. 187,

LGC)

• 2. Public hearings are required before any local tax

ordinance is enacted (Sec. 187, LGC)

• 3. Within 10 days after their approval, publication in full

for 3 consecutive days in a newspaper of general

circulation. In the absence of such newspaper in the

province, city or municipality, then the ordinance may be

posted in at least two conspicuous and publicly

accessible places (Sec. 188 & 189, LGC)

• Q: What is the effect if the tax

ordinance was not published in full

(only excerpts / summary)?

• A: The requirement of publication in full

for 3 consecutive days is mandatory for

a tax ordinance to be valid.

• The tax ordinance will be null and

void if it fails to comply with such

publication requirement. (Coca-Cola v.

City of Manila, G.R. No. 161893 June

27, 2006)

• Q: May LGU’s prescribe penalties for tax

violations?

• A: YES.

• 1. Limited as to the amount of imposable fine as well as

the length or period of imprisonment;

• 2. The Sanggunian is authorized to prescribe fines or

other penalties for violations of tax ordinances, but in no

case shall fines be less than P1,000 nor more than

P5,000 nor shall the imprisonment be less than one (1)

month nor more than six (6) months;

• 3. Such fine or other penalty shall be imposed at the

discretion of the court;

• 4. The Sangguniang Barangay may prescribe a fine of

not less than P100 nor more than P1,000. (Sec. 516,

LGC)

• Q: May LGUs grant exemptions?

• A: Yes. Local government units may,

through ordinances duly approved, grant

tax exemptions, incentives or reliefs

under such terms and conditions as they

may deem necessary. (Sec. 192, LGC)

• The power to grant tax exemptions,

tax incentives and tax reliefs shall not

apply to regulatory fees which are

levied under the police power of the

LGU.

• Q: What are the guidelines for granting tax

exemptions, incentives and reliefs? (Rules

and Regulations Implementing the LGC, Sec.

282[b])

• A:

• 1. Tax Exemptions and Reliefs

• a. May be granted in cases of natural

calamities, civil disturbance, general failure of

crops or adverse economic conditions such

as substantial decrease in prices of

agricultural or agri-based products;

• b. The grant shall be through an ordinance;


exemptions, incentives and reliefs?

• A:

• c. Any exemption or relief granted to a type or

kind of business shall apply to all business

similarly situated;

• d. The same may take effect only during the

calendar year not exceeding 12 months as may

be provided in the ordinance; and

• e. In case of shared revenues, the relief or

exemption shall only extend to the LGU granting

such.


exemptions, incentives and reliefs?

• A: For Tax incentives:

• a. Shall be granted only to new investments in the

locality and the ordinance shall prescribe the terms

and conditions therefore;

• b. The grant shall be for a definite period not

exceeding 1 calendar year;

• c. The grant shall be through an ordinance passed

prior to the 1st day of January of any year; and

• d. Tax incentive granted to a type or kind of

business shall apply to all businesses similarly

situated.

• Q: Does the LGU have the power

to adjust local tax rates?

• A: Yes, provided that the adjustment

of the tax rates be prescribed in an

ordinance but should not be oftener

than once every five (5) years, and

in no case shall such adjustment

exceed ten percent (10%) of the

rates fixed under the LGC. (Sec.

191, LGC)

LGU Power to Impose Franchise Tax

• In this case, Smart, contends that its telecenter in Davao City

is exempt from payment of franchise tax to the City, because

its franchise (R.A. No. 7294 [1992]) includes the clause “in

lieu of all taxes” (§9).

• Smart alleges that the “in lieu of all taxes” clause in its

franchise exempts it from all taxes, both local and national.

• The Local Government Code, which allowed the imposition

of franchise tax by LGUs, took effect 2 months ahead of

Smart’s franchise.

• The SC ruled that the ‘in lieu of all taxes’ clause applies only

to national internal revenue taxes and not to local taxes.

• Smart Communications, Inc. v. City of Davao, 565 SCRA

237 (2008)

• Q: Sample Problem:

• The Local Government Code took effect

on January 1, 1992. PLDT’s legislative

franchise was granted sometime before

1992. Its franchise provides that PLDT will

pay only 3% franchise tax to the BIR in

lieu of all taxes.

• The legislative franchise of Smart and

Globe Telecoms were granted in 1998.

Their legislative franchises state that they

will pay only 5% franchise tax to the BIR in

lieu of all taxes.

• Q: Sample Problem:

• The Province of Zamboanga del Norte

passed an ordinance in 1997 that imposes a

local franchise tax on all telecommunications

companies operating within the province.

• The tax is 50% of 1% of the gross annual

receipts of the preceding calendar year based

on the incoming receipts, or receipts realized,

within its territorial jurisdiction.

• Is the ordinance valid? Are PLDT, Smart and

Globe liable to pay franchise taxes to the

Province of Zamboanga?

• A: YES

• The ordinance is valid. The Local Government

Code explicitly authorizes provincial governments,

notwithstanding any law or other special law, to

impose a tax on business enjoying a franchise at

the rate of 50% of 1% based on the gross annual

receipts during the preceding year within the

province. (Section 137, LGC)

• PLDT is liable to the franchise tax levied by the

province of Zamboanga del Norte. The tax

exemption privileges on franchises granted before

the passage of the Local Government Code are

effectively repealed by the latter law. (PLDT v. City

of Davao, G.R. No. 143867, Aug. 22, 2002)

• A: While Smart and Globe’s franchises were enacted

after the Local Government Code, still Smart and

Globe are also liable to pay franchise tax to the

province.

• The SC ruled that the ‘in lieu of all taxes’ clause

applies only to national internal revenue taxes and

not to local taxes.

• The “in lieu of all taxes” clause in a legislative

franchise should categorically state that the

exemption applies to both local and national taxes;

otherwise, the exemption claimed should be strictly

construed against the taxpayer and liberally in favor of

the taxing authority. (Smart Communications, Inc.,

v. The City of Davao, G.R. No. 155491, Jul. 21,

2009)

Are local water districts exempt

from taxation?

• Yes. Under PD 198, local water districtsare tax exempt government-owned andcontrolled corporations. (OGCC OpinionNos. 268-1995).

• Its employees, however, are covered by theCivil Service Law.

• It is an offspring corporation of the localgovernment forming it, to operate basicallyas a public utility for public service. (LWUAOpinion September 21, 1995).

Are local water districts exempt from taxation?

• SEC. 46, PD 198. Exemption from Taxes. -

• A district shall (1) be exempt from paying income

taxes, and (2) shall be exempt from the payment

of (a) all National Government, local

government and municipal taxes and fees,

including any franchise, filing, recordation, license

or permit fees or taxes and any fees, charges or

costs involved in any court of administrative

proceeding in which it may be a party and (b) all

duties or imposts on imported machinery,

equipment and materials required for its operations.

(As amended by Sec. 20, PD 768)

May the Sanggunian investigate the

local water district?

• Yes. A local water district is agovernment-owned and controlledcorporation. (OGCC Opinion Nos. 268-1995). Its employees, however, arecovered by the Civil Service Law.

• It is an offspring corporation of the localgovernment forming it, to operatebasically as a public utility for publicservice. (LWUA Opinion September 21,1995).

What may LGU’s collect from

local water districts

• “In-Lieu Shares. --- As an incident to the

acquisition of the existing water system of a

city, municipality, or province, a district may

enter into a contract to pay in lieu of taxes

on such utility plant, an annual amount not

exceeding three (3%) percent of the

district’s gross receipts from water sales

every year.” (Sec. 30-b, PD 198)

• Q: May the LGU impose “pass through” fees?

• A: NO.

• Pass through fees are TAXES, FEES, CHARGES

AND OTHER IMPOSITIONS UPON GOODS

CARRIED INTO OR OUT OF, OR PASSING

THROUGH the territorial jurisdiction of the LGUs in

the guise of a toll, charges for wharfage or others

taxes, fees, or charges in any form upon goods or

merchandise.

• Local ordinances imposing/collecting PASS

THROUGH taxes, fees or charges are

considered illegal and runs counter to Section 133

(e) of the Code. DILG LEGAL OPINION NO. 059-

12 (October 15, 2012)

• Q: May the LGU impose “pass through” fees?

• A: NO.

• "SECTION 133. Common Limitations on the

Taxing Powers of Local Government Units. — Unless

otherwise provided herein, the exercise of the taxing

powers of provinces, cities, municipalities, and

barangays shall not extend to the levy of the

following:

• (e) Taxes, fees and charges and other

impositions upon goods carried into or out of, or

passing though, the territorial jurisdictions of

local government units in the guise of charges for

wharfage, toll for bridges or otherwise, or other taxes,

fees or charges in any form whatsoever upon goods

or merchandise;"

• Q: Are “pass through” fees the same as

toll fees?

• A: NO.

• Toll fees are legal. LGUs may regulate the

USE of its roads or other public facilities as

provided under Section 155 of the Code

through the imposition of toll fees or charges

thereon PROVIDED THAT THE ROADS

ARE FUNDED AND CONSTRUCTED BY

THE LOCAL GOVERNMENT UNIT

concerned. [DILG LEGAL OPINION NO.

059-12 (October 15, 2012)]

• Q: What are toll fees?

• A:.

• SEC. 155. Toll Fees or Charges. — The sanggunian

concerned may prescribe the terms and conditions and fix

the rates for the imposition of toll fees or charges for the

use of any public road, pier or wharf, waterway, bridge,

ferry or telecommunication system funded and

constructed by the local government unit concerned:

Provided, That no such toll fees or charges shall be

collected from officers and enlisted men of the Armed

Forces of the Philippines and members of the Philippine

National Police on mission, post office personnel delivering

mail, physically-handicapped, and disabled citizens who are

sixty-five (65) years or older. When public safety and

welfare so requires, the sanggunian concerned may

discontinue the collection of the tolls, and thereafter the

said facility shall be free and open for public use."

• Q: The Sangguniang Bayan of Bamban, Tarlac

enacted an ordinance imposing regulatory fees on

all public and private haulers of garbage traversing

the roads of said municipality. Is this legal?

• A: Yes.

• Garbage is not considered “goods” within the purview

of Section 133 of the LGC.

• This is not also a pass though fee because no goods

are subjected to tax.

• This is a valid toll fee, provided that the imposition

applies only to ROADS THAT ARE FUNDED AND

CONSTRUCTED BY THE LOCAL GOVERNMENT

UNIT concerned. [DILG LEGAL OPINION NO. 007-12

(January 30, 2012)]

• Q: The Sangguniang Bayan of Carrascal,

Surigao Del Sur enacted Municipal Ordinance

No. 02-2012 imposing environmental hazard fee

on all commercial vessels loading mineral ores

within its municipal waters. Is this legal?

• A: Yes.

• This is not a pass though fee because what is

taxed is the commercial vessels’ loading of mineral

ores in order to regulate the environmental hazard

thereof.

• This is valid provided that there are specific acts of

regulation (like inspection, registration, and

monitoring) to justify the imposition. [DILG LEGAL

OPINION NO. 037-13 (November 21, 2013)]

Oversight on

Contracts

What are the conditions under whicha local executive may enter into a contractin behalf of his government unit?

a. The local government unit must have the power toenter into the particular contract.

a. Pursuant to Section 22(c) of the Local GovernmentCode, there must be a prior authorization by thesanggunian concerned;

b. If the contract involves the expenditure of publicfunds, there must be an appropriation therefore and acertificate of availability of funds by the treasurer ofthe local government unit.

c. The contract must conform with the formal requisitesof written contracts prescribed by law.

• Q: What documents must support the contract of sale

entered into by the LGU?

• A:

• Resolution of the sanggunian authorizing the local chief

executive to enter into a contract of sale. The resolution

shall specify the terms and conditions to be embodied in the

contract;

• Ordinance appropriating the amount specified in the

contract

• Certification of the local treasurer as to availability of funds

together with a statement that such fund shall not be

disbursed or spent for any purpose other than to pay for the

purchase of the property involved. (Jesus is Lord Christian

School Foundation, Inc. vs. Municipality of Pasig, G.R. No.

152230, August 9, 2005)

• Q: Can the Annual Budget be used as continuing

authority for the LCE to enter into contracts without

prior authorization from the Sanggunian?

• A: NO.

• Sec. 22 of the LGC states: “Unless otherwise provided in

this Code, no contract may be entered into by the local

chief executive in behalf of the local government unit

without prior authorization by the sanggunian

concerned.”

• Should the appropriation ordinance, however, already

contain in sufficient detail the project and cost of a capital

outlay such that all that the local chief executive needs to do

after undergoing the requisite public bidding is to execute

the contract, no further authorization is required, the

appropriation ordinance already being sufficient.

• Quisumbing vs. Gov. Garcia, G.R. No. 175527. Dec. 8, 2008.

Basic Rules on Government Contracts

• The absence of any of the three legal

requirements — an appropriation

law, a certificate of appropriation

and fund availability, and public

bidding — renders any contract

entered into by the government as void

from the beginning.• Sections 46, 47 and 48, Chapter 8, Subtitle B, Title I, Book

V of the Administrative Code of 1987

First Requisite: Appropriation Law

• The Administrative Code of 1987 expressly prohibits

the entering into contracts involving the expenditure of

public funds unless two prior requirements are

satisfied.

• First, there must be an appropriation law authorizing

the expenditure required in the contract.

• Second, there must be attached to the contract a

certification by the proper accounting official and

auditor that funds have been appropriated by law and

such funds are available.

• Failure to comply with any of these two

requirements renders the contract void.

First Requisite: Appropriation Law

• Section 46, Chapter 8, Subtitle B, Title I, Book V of the

Administrative Code of 1987 provides:

• “SECTION 46. Appropriation Before

Entering into Contract. — (1) No contract

involving the expenditure of public funds

shall be entered into unless there is an

appropriation therefore, the unexpended

balance of which, free of other obligations, is

sufficient to cover the proposed expenditure;

2nd Requisite: Availability of Funds



• “SECTION 47. Certificate Showing Appropriation to

Meet Contract. — … no contract involving the expenditure

of public funds by any government agency shall be entered

into or authorized unless the proper accounting official

of the agency concerned shall have certified to the

officer entering into the obligation that funds have been

duly appropriated for the purpose and that the amount

necessary to cover the proposed contract for the

current calendar year is available for expenditure on

account thereof…”

Effect of Non Compliance



• “SECTION 48. Void Contract and Liability of

Officer. — Any contract entered into contrary to

the requirements of the two (2) immediately

preceding sections shall be void, and the officer

or officers entering into the contract shall be liable

to the Government or other contracting party for

any consequent damage to the same extent as if

the transaction had been wholly between private

parties.”

• Q: Is Public bidding required when LGUs

enter into contracts?

• A: Yes, in the award of government

contracts, the law requires competitive public

bidding. It is aimed to protect the public

interest by giving the public the best possible

advantages thru open competition. It is a

mechanism that enables the government

agency to avoid or preclude anomalies in the

execution of public contracts. (Garcia

vs.Burgos, G.R. No. 124130, June 29, 1998)

• Q: Can a municipal contract be

ratified?

• A: No, when the local chief executive

enters into contracts, he needs prior

authorization or authority from the

Sanggunian and not ratification.

(Vergara vs. Ombudsman, G.R. No.

174567, March 12, 2009)

Oversight on

Appointments

What is the period for the Sanggunian to

concur on appointments?

• When an appointment is presented before the sanggunian

for its concurrence, that sanggunian is mandated to act

thereon within fifteen (15) days from the date of its

submission (Sec. 463, Ibid).

• The word "act" in said provision means either expressly to

concur or not to concur on the appointment upon

determining whether or not the appointee possesses all the

qualifications and none of the disqualifications for the said

office (DILG Opinion No. 40, s. 2000).

• For as long as the appointee possesses the required

qualifications and none of the disqualifications, it is a

ministerial duty which the law enjoins on the part of the

Sangguniang Panlalawigan to concur your appointment.

When is the appointment deemed effective?

• Appointment to a public office becomes

effective only once it is completed.

• The Supreme Court, in the case of Atty.

David B. Corpuz vs. Court of Appeals, et. al.,

G.R. No. 123989 dated January 26, 1998,

held that where the assent or confirmation of

some other offices or body is required, the

appointment may be complete only when

such assent or confirmation is obtained.

Hiring of Consultants

• Can the Mayor hire consultants for theLGU without prior authorization by thesanggunian?

• No. The hiring of a consultant requires theexecution of a consultancy contract or MOAwith a prescribed payment for the contractedservices by the LGU.

• Under Section 22 (c) of the LGC, the mayorcan neither enter into this contract nor hireconsultants without prior authorization fromthe Sanggunian. (DILG Opinion No. 40-2003 dated 26 March

2003)

Can The Vice Mayor Hire Consultants

• Yes. But he must first be authorized by the

Sanggunian to enter into the Consultancy contract

(Section 22-C, LGC).

• Under Section 456 of R.A. 7160, there is no inherent

authority on the part of the city vice-mayor to enter into

contracts on behalf of the local government unit, unlike

that provided for the city mayor.

• Thus, the authority of the vice-mayor to enter into

contracts on behalf of the city is strictly circumscribed

by the ordinance granting it.

• The ordinance is valid only for a specific period and

with a specific contract. (ARNOLD D. VICENCIO VS. HON.

REYNALDO A. VILLAR, ET AL. , G.R. NO. 182069. JULY 3, 2012)

May LGU’s hire elected officials or government

employees as consultants?

YES. Pursuant to Section 2(a), Rule 11 of CSC MemoCircular No. 40 dated 14 December 1998,consultancy services are not consideredgovernment services and no employer-employeerelationship exists between the LGU and theconsultant.

Thus, the position of consultant cannot beconsidered as an appointment or designation inany capacity to a public office or position. Alsothe honorarium received from such consultancyagreement cannot be considered double oradditional compensation since no employer-employee relationship exists. (DILG Opinion No.26 s. 2001 dated 16 April 2001)

May LGU’s hire private counsel?

In the case of Ramos vs. CA (108 SCRA 728), theSupreme Court declared that a private lawyer cannotrepresent a local government unit even if the servicesrendered was gratis.

Moreover, in the case of Edgar Mancenido, et. al., vs.Court of Appeals (330 SCRA 419), the Supreme Courtstated that an LGU may only hire a private attorneywhen the provincial fiscal is disqualified.

However, the LGU may hire a private lawyer as a legalofficer under a consultancy agreement, dulyapproved by the local sanggunian. Suchsanggunian resolution will clothe him with theauthority to act as the legal officer of the LGU.(DILG Opinion No. 26 s. 2004 dated 03 February 2004)

QUASI-JUDICIAL

POWERS OF THE

SANGGUNIAN

• Q: Where should an administrative complaint

against elective officials be filed?

•

• A: A verified complaint shall be filed with the

following:

• Office of the President – against elective official of

provinces, HUC, ICC, component cities.

• Sangguniang Panlalawigan – elective officials of

municipalities; and

• Sangguniang Panglunsod or Bayan – elective

barangay officials. (Sec. 61, LGC)

What are the grounds to discipline local officials?

• 1. Disloyalty to the Republic;

• 2. Culpable Violation of the Constitution;

• 3. Dishonesty, oppression, misconduct inoffice, gross negligence, or dereliction of duty;

• 4. Commission of any offense involving moralturpitude or an offense punishable by at leastprision mayor;

• 5. Abuse of Authority;

• 6. Unauthorized Absences for 15 consecutivedays (3 consecutive sessions);

• 7. Acquisition of foreign citizenship or status ofan immigrant in another country;

• 8. Such other grounds. (Section 60, LGC)

Power to Discipline

• A Sanggunian may only discipline erring subordinate officials.

• A council cannot, by mere resolution, removea local chief executive. Such power isexercised by a higher council. (DILG OpinionsNos. 281-1993; 38-1995)

• A vice-mayor, despite his/ her unauthorizedabsences, remains to be vice-mayor and maynot be disciplined by his own Sanggunian.(DILG Opinion No. 179-1994)

Contempt Powers of the Sanggunian

• A sanggunian cannot cite in contempt a

person who fails to appear before it since

there is no law which authorizes local

legislative councils from doing so. (DILG

Opinion No. 3-1994)

• Neither can it issue compulsory processes.

Thus, a local legislative council cannot

compel attendance in committee hearings.

(DILG Opinion No. 212-1993)

How should the Sanggunian try

disciplinary cases?

• Cases involving barangay officials must becommenced by filing a formal notarizedcomplaint before the Sanggunian.

• The appropriate Committee will conduct apreliminary study and its report will then beheard by the whole Sanggunian.

• The Sanggunian will then conduct hearings.

• A Decision will then be prepared containing asummary of the facts and the issues resolved.(Malinao vs. Reyes G.R. No. 117618 March 29, 1996)

Procedures in disciplinary cases?

• Within 7 days after the complaint is filed,

the Sanggunian shall send a Notice to the

respondent requiring him to submit his

answer within 15 days from his receipt of

the Notice;

• The Sanggunian will then commence the

investigation within 10 days from receipt

of respondent’s answer. (Section 62, LGC)

Abuse of Authority as a ground for

disciplinary action

• Local government officials who passordinances or resolutions which are contrary tolaw may be disciplined for abuse of authority.(DILG Opinion No. 90-1994)

• Local officials are presumed to beknowledgeable of existing laws. (OGCC OpinionNo. 093-1996 March 29, 1996)

• Incurring excessive cash advances constitutesabuse of authority and/ or dishonesty. (DILGOpinion No. 60-1994)

Gross Negligence as a ground for

disciplinary action

• Refusal of a mayor to honor and enforce

ordinances duly enacted by the

Sanggunian is gross negligence.(DILG


• Failure to attend council sessions due to

members’ drinking sprees amounts to

gross negligence. (DILG Opinion No.

157-1994)

Gross Negligence as a ground for

disciplinary action

• The members of the sangguniangpanlalawigan may be disciplined if theyfail to act, on review, the ordinancesenacted by the sangguniang bayan.(DILG Opinion No. 157-1994)

• A vice mayor who refuses to signordinances approved by a majority of thesanggunian is guilty of gross negligenceor abuse of authority (DILG Opiniondated 28 June 2011).

Absences as a ground for

disciplinary action.

• Absence for more than 15 consecutive

days without the filing of a formal leave

of absence constitutes a ground for

disciplinary action.

• Travel abroad without due notice to the

council constitutes unauthorized

absence. (DILG Opinion No. 24-1993)

May the Sanggunian suspend a sanggunian

Secretary or other appointive official?

• No. The power to disciplineappointive officials is lodged withthe Civil Service Commission only.

• However, the local chief executive,as head of agency, may imposedisciplinary sanctions on appointiveofficials after due process. (DILGOpinion No. 132-2003)

Preventive Suspension

• This is not a penalty.

• This may be imposed by the

Sanggunian on any elected

subordinate official immediately

upon filing of the complaint even

before the answer is filed; (DILG


Procedures for Preventive Suspension

• This may be imposed by the mayor /governor upon recommendation bythe Sanggunian;

• Maximum of 60 days per case butnot exceeding 90 days suspension inone year;

• The suspended official is deemedautomatically reinstated after theperiod of suspension (Section 63,LGC)

Preventive Suspension

• The authority of the local chief executives(Governor/Mayor) to impose preventivesuspension is purely ministerial since thedisciplinary authority over erring municipalor barangay elective officials is theSangguniang Panlalawigan, SangguniangPanlungsod or Sangguniang Bayan, as thecase may be.

• Hence, after the sanggunian shall havedetermined the necessity to warrant theimposition of preventive suspension, thesame only need to be implemented by thelocal chief executive concerned. (DILGOpinion No. 56-11, Sept. 2, 2011)

Salary During Preventive Suspension

• An elected official preventivelysuspended from office shall receiveno salary during such suspension;

• But upon reinstatement, he shall bepaid full salary including allemoluments accruing during suchsuspension. (Section 64, LGC)

Penalty of Suspension

• An elected official may be suspended by theSanggunian for a period of not more than six(6) months;

• This can only be imposed after due notice andhearing;

• The investigation must be terminated within 90days from the start of the proceedings.

• The sanggunian must decide the case within 30days after the case is submitted for decision.(Section 66, LGC)

Can a local sanggunian remove an

elected official of the LGU?

• NO. The Sangguniang Panlungsod or

Sangguniang Bayan cannot order the

removal of an erring elective barangay

official from office, as the courts are

exclusively vested with this power under

Section 60 of the Local Government Code.

• THE SANGGUNIANG BARANGAY OF

BARANGAY DON MARIANO MARCOS vs.

MARTINEZ, G.R. No. 170626 March 3, 2008

• Q: What is the Doctrine of Administrative

Condonation?

• A:

• The rule that public official cannot be removed for

administrative misconduct committed during a

prior term, since his re-election to office operates

as a condonation of the officer’s previous

misconduct to the extent of cutting off the right to

remove him therefore.

• Note that this has no application to pending

criminal cases. (Aguinaldo v. Santos, G.R. No.

94115, Aug. 21, 1992)

• Q: When is subsequent re-election considered a

condonation?

• A: If the decision of the administrative disciplinary authority

penalizing the respondent local elective official had

become final and executory before the election, then the

principle of condonation for a misconduct during a prior

term will not apply.

• On the other hand, if the said adverse decision against the

respondent was not yet final and executory on the day of

election as for instance there was a timely and pending

appeal on said date, then the principle of condonation will

apply. (Malinao v Reyes, GR 117618 Mar.29, 1996)

• Note: Subsequent re-election cannot be deemed a

condonation if there was already a final determination of

his guilt before the re-election. (Reyes v. COMELEC, G.R.

No. 120905 March 7, 1996)

May the Sanggunian continue hearing a

case even after the respondent has been

re-elected to office?

• No. An administrative case becomesmoot and academic as a result of theexpiration of term of office of an electivebarangay official during which the actcomplained of was allegedly committed.

• Further, proceedings against therespondent are barred by his/ her re-election. (Malinao vs. Reyes G.R. No.117618 March 29, 1996)

May the Sanggunian hear a case involving

acts committed in a prior term?

• No. A public official cannot be

removed for administrative

misconduct committed during a prior

term since his re-election to office

operates as a condonation or

forgiveness of his previous

misconduct. (Aguinaldo v. Santos) (DILG

Opinions Nos. 177-1992; 42, 107 - 1995)

May the Sanggunian hear a case when the

respondent already resigned?

• No. A Sanggunian loses jurisdiction

over administrative proceedings

against a barangay official who has

already resigned since official

relations have been terminated by

such act. (DILG Opinion No. 323-1992)

Signature of the Mayor

• The decision of the Sanggunian to suspend abrgy. Official DOES NOT REQUIRE THESIGNATURE OF THE MAYOR TO BE VALID;

• The mayor, however, will be the one toimplement the penalty of suspension;

• The mayor cannot sit on the decision or refuseto implement the suspension.

• If he does, he can be charged with abuse ofauthority or dereliction of duty. (DILG OpinionNo. 14-2002; Opinion No. 9-2004)

May the Mayor veto a decision of

the sanggunian?

• The decision of the Sanggunian to suspend a brgy. Official IS NOT A LEGISLATIVE ACT. THEREFORE IT IS NOT SUBJECT TO THE VETO POWER OF THE MAYOR.

• The power to discipline brgy. officials is an exercise of quasi-judicial power that is exclusive to the sanggunian. (DILG Opinion No. 19-2002; Opinion No. 9-2004)

Q. Is appeal available in administrative disciplinary cases?

A: It depends on the penalty imposed:

Appeal is available if the penalty is:

Demotion, Dismissal, or Suspension for more than 30 days or

fine equivalent to more than 30 day salary (P.D. 807, Sec.37

par [a]).

Appeal is not available if the penalty is:

Suspension for not more than 30 days

Fine not more than 30 day salary

Censure; Reprimand; or Admonition

Note: In the second case, the decision becomes final and

executory by express provision of law.

Motion for Reconsideration

• A brgy. Official suspended by theSanggunian may file a motion forreconsideration – but this will not staythe execution of the suspension.

• The decision of the sanggunian indisciplinary cases is immediatelyexecutory even pending appeal. But thereviewing authority may issue a stayorder pursuant to its review authority.

• The decision of the sanggunian bayanmay be appealed to the sangguniangpanlalawigan. (Section 66, LGC)

Stay of Execution

• The first sentence of Section 68 merely provides thatan "appeal shall not prevent a decision from becomingfinal or executory."

• As worded, there is room to construe said provision asgiving discretion to the reviewing officials to stay theexecution of the appealed decision.

• There is nothing to infer therefrom that the reviewingofficials are deprived of the authority to order a stay ofthe appealed order.

• The execution of decisions pending appeal isprocedural and in the absence of a clear legislativeintent to remove from the reviewing officials theauthority to order a stay of execution, such authoritycan be provided in the rules and regulations governingthe appeals of elective officials in administrative cases.

• Berces v. Guingona, G.R. No. 112099. February 21, 1995.

Q. Will the filing of a Motion for Reconsideration or an

appeal stay the execution of a decision of the

Ombudsman in an administrative case?

Answer: No. Appeals from decisions of the

Ombudsman in administrative cases do not stay the

execution of the penalty imposed.

This is pursuant to Section 7, Rule III of the Rules of

Procedure of the Ombudsman which explicitly states that

an appeal shall not stop the decision from being

executory.

No vested right is violated because pending appeal the

appellant is considered as preventively suspended and

will be paid backwages in case he wins in his appeal.

(Facura, et al., v. CA, GR No. 166495, Feb. 16, 2011)

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