special panel of investigators - we protectpage 6 of 29 joint order special panel of investigators...

Republic of the Philippines OFFICE OF THE OMBUDSMAN

Agham Road, Diliman, Quezon City 1101

SPECIAL PANEL OF INVESTIGATORS

Complainant,

OM B-C-A-15-0058-versus - For: Grave Misconduct; Serious

Dishonesty; Conduct Prejudicial to the Best Interest o f the Service.(For the Design, Architectural and Engineering Services)

JEJOMAR ERWIN S. BINAY, JR.City Mayor

MARJORIE A. I)E VEYRAFormer City Administrator

PIO KENNETH I. DASALCity Legal Officer

LORENZA P. AMORESCity Budget Officer

VIRGINIA S. HERNANDEZFormer ChiefCentral Planning Management Office (CPMO)

MARIO V. BADILLOFormer City Engineer

LEONILA G. QUERIJEROFormer City Accountant

RAYDES B. PESTANOFormer Acting City Accountant

NELIA A. BARLISCity Treasurer

CECILIO P. LIM HICity Accountant

All of: City Hall, Makati City

Respondents.x x

o f 29 JOINT ORDERSpecial Panel o f Investigators v. Jejomar Erwin Binay, Jr., el al. OMB-C-A-15-0058 to OMB-C-A-15-0063


Complainant,

OMB-C-A-15-0059- versus - For: Grave Misconduct; Serious

Dishonesty(Phase I - Construction)

ARNEL L. CADANGANCivil Engineer, CPMO

LINE M. DELA PENAChief, CPMO

GIOVANNI I. CONDES1 lead, BAC Secretariat

MARJORIE A. DE VEYRAFormer City Administrator

RODEL R. NAYVEChairman, Technical Working Group




LEONILA G. QUERIJEROFormer City Accountant

NORMAN I). FLORESStaff, General Services Department

All of: City Hall, Makati City,

xRespondents. ---------------------- x



Complainant,

OMB-C-A-15-0060- versus - For : Grave Misconduct; Serious

Dishonesty(Phase II - Construction)



GIOVANNI I. CONDESI lead, B AC Secretariat






LEONILA G. QUERIJEROFormer City Accountant,


Respondents.x x

o f 29 JOINT ORDERSpecial Panel o f Investigators v. Jejomar Erwin Binay, Jr., et al. OM B-C-A-!5-0058 to OMB-C-A-!5-0063

SPECIAL PANEL OF INVESTIGATORS Represented by: ATTY. MARIA TERESA L. LEE-RAFOLS,

Complainant,


Dishonesty(Phase III - Construction)

JEJOMARERWIN S. BINAY, JR.City Mayor



GIOVANNI I. CONDESHead, BAC Secretariat



ULYSSES E. ORIENZABAC Member



MARIO V. BADILLOFormer City Engineer

EMERITO C. MAG ATCivil Engineer, CPMO


o f 29 JOINT ORDERSpecial Panel o f Investigators v. Jejomar Erwin Binay, Jr., et al. OMB-C-A-15-0058 to OMB-C-A-15-0063

CECILIO P. LIM IIICity Accountant


Respondents. x----------------------------------------------------- x

SPECIAL PANEL OF INVESTIGATORSComplainant,


Dishonesty(Phase IV - Construction)

JEJOMAR ERWIN S. BINAY, JR.City Mayor

CONNIE N. CONSULTACivil Engineer, CPMO


MANOL1TO N. UYACOHead, BAC Secretariat



GERARDO K. SAN GABRIELOIC, General Services Department



LEON I LA G. QUERIJEROFormer City Accountant





Respondents. x-----------------------------------------------------x


Complainant,


Dishonesty(Phase V - Construction)

JEJOMAR ERW INS. BINAY, JR.City Mayor

CONNIE N. CONSULTACivil Engineer, CPMO


MANOLITO N. UYACOHead, BAC Secretariat



GERARDO K. SAN GABRIELOIC, General Services Department

PIO KENNETH 1. DASALCity Legal Officer


o f 29 JOINT ORDERSpecial Pane! o f Investigators v. Jejomar Erwin Binay, Jr., el al. OMB-C-A-15-0058 to OMB-C-A-15-0063

MARK) V. BADILLOFormer City Engineer

NEL1A A. BARLISCity Treasurer

ELENO M. MENDOZAActing City Accountant


RAYDES B. PESTANOFormer Acting City Accountant


Respondents. x-------------- -------------------------------------- x

J O I N T O R D E R

For resolution are respondents’ separate motions for reconsideration

o f the 7 September 2015 Joint Decision,1 the dispositive portion o f which

partly states:

WHEREFORE, there being substantial evidence, respondents JEJOMAR ERWIN S. BINAY, JR., MARJORIE A. DE VEYRA, PIO KENNETH I. DASAL, LORENZA P. AMORES, VIRGINIA S. HERNANDEZ, MARIO V. BADILLO, LEONILA G. QUERIJERO, NELIA A. BARLIS, CECILIO P. LIM III, ARNEL L. CADANGAN, LINE M. DELA PENA, GIOVANNI I. CONDES, RODEL R. NAYVE, NORMAN D. FLORES, ULYSSES E. ORIENZA, EMERITO C. MAGAT, CONNIE N. CONSULTA, MANOL1TO N. UYACO, GERARDO K. SAN GABRIEL, ELENO M. MENDOZA, JR., and RAYDES B. PESTANO are found GUILTY of Serious Dishonesty and Grave Misconduct.

Accordingly, they are meted the penalty o f DISMISSAL FROM THE SERVICE which shall carry with it the accessory penalties of cancellation o f eligibility, forfeiture of retirement benefits, perpetual disqualification from holding public office, and bar from taking any civil service examinations pursuant to Section 52 of the Revised Rules on Administrative Cases in the Civil Service.

1 Records, pp. 7268-7370.


Respondents base their motions for reconsideration on the following

arguments:

JEJOMAR ERWIN S. BINAY, JR. (Binay, Jr.)2 asserts that this

Office failed to afford him his constitutional right to due process, the right to

be presumed innocent until proven guilty, and to be informed o f the nature

and cause o f accusation against him when it ordered the filing o f counter

affidavit despite the insufficiency o f the complaint in form and substance.

Binay, Jr. also claims that: 1) this Office abused its discretion and

denied him due process when it issued the assailed Joint Decision without

first resolving his motions3 and/or waiting for the resolution o f the issues

raised in his Petition for Certiorari with the Court o f Appeals; 2) the Joint

Decision is inconsistent with the Court o f Appeals’ initial findings on the

application o f the condonation doctrine; 3) he could not be charged for the

alleged irregularities in the procurement for the Parking Building on the

basis o f conspiracy since he was not a member o f the Bids and Awards

Committee (BAC) and was not the author o f the alleged falsifications; 4) he

could not be held liable for the irregularities relating to the procurement and

award o f contract to MANA Architecture and Interior Design Co. (MANA)

since the same happened in 2007, when he was not yet the City Mayor; 5)

the alleged flaws in the bidding and documents supporting the disbursement

vouchers (DV) authorizing the payments to MANA and Hilmarc’s

Construction Corporation (Hilmarc’s) were not apparent; 6) the Commission

on Audit (COA) never issued any audit observation memorandum regarding

any o f the payments made; 7) his approval o f the BAC resolutions, Notices

o f Award, and DVs cannot serve as basis for the finding o f Grave

Misconduct and Serious Dishonesty since the same were made with

2 Id., pp. 7866-7892.3 Motion to Suspend Proceedings Pending the Outcome o f Cases in the Court o f Appeals and the Supreme Court dated 12 May 2015; Motion for Reconsideration o f the Order dated 27 May 2015; Motion to Resolve; Motion for Clarification.4 As contained in its Resolution dated 6 April 2015.

o f 29 JOINT ORDERSpecial Panel o f Investigators v. Jejomar Erwin Binay, Jr., et at. OMB-C-A-15-0058 to OMB-C-A-15-0063

sufficient justifications; and 8) his approvals o f the documents were the

same acts he had to perform in the fulfilment o f his duties, and do not

constitute deviation from established rules o f procedure or distortion o f the

truth.

Binay, Jr. again cites the Arias5 doctrine to exculpate him from

liability and stresses that he relied on the certifications o f the Acting City

Accountant and City Treasurer when he signed the DVs. He also disputes

this Office’s application o f Nava vs. Palattaob in these cases. He points out

that he was not yet the City Mayor at the time o f the procurement o f

architectural and design services for the Parking Building. As for Phases

III, IV, and V, there were public biddings conducted by the BAC.

Finally, Binay, Jr. insists on the application o f the condonation

doctrine based on the pronouncements made in Salalima v. Guigona and

Garcia v. Mojica,8 He adds that granting that the final payments to MANA

and Hilmarc’s were made during his present term o f office, said payments

were made to implement contracts or transactions that pertain to his previous

terms. The condonation doctrine should, therefore, still be applied.

MARJORIE A. DE VEYRA (De Veyra) asserts that the complaint

against her should be dismissed in view o f her resignation from government

service on 3 October 2012. Citing Office o f the Ombudsman v. Andutan

she avers that this Office no longer had administrative jurisdiction over her

when the complaint was filed on 3 March 2015.

LORENZA P. AMORES (Amores)11 claims that the period o f 48

days as the earliest possible time for procurement activities under Annex

5 Arias v. Sandiganbayan, G.R. No. 81563, 19 December 1989.6 Venancio R. Nava v. Rodolfo G. Palattao, G.R. No. 160211, 28 August 2006.7 G.R. Nos. 117589-92,22 May 1996.8 G.R. No. 139043, 10 September 1999.9 Records, pp. 7682-7694.10 G.R. No. 164679, 27 July 2011.11 Records, pp. 7854-7865.


“C” o f the Implementing Rules and Regulations-A o f Republic Act No.

9184 (RA 9184)12 is only applicable to the procurement o f consulting

services through public bidding. Thus, said period is not applicable to the

procurement o f architectural and design services for the Parking Building

since the BAC resorted to limited source bidding.

Amores further avers that there were no falsifications o f the BAC

resolutions declaring the Lowest Calculated and Responsive Bids (LCRB)

since the BAC signed the same on the basis o f the proceedings they

conducted.

As regards the falsification o f the bid documents o f JBros

Construction (JBros), Amores points out that complainant failed to present

any evidence that such bid proposal did not in fact exist.

MARIO V. BADILLO (Badillo)13 claims that this Office

erroneously charged him as City Engineer as his designation on 12

November 2012 was only as Officer-in-Charge (OIC)-City Engineer. Thus,

his accountability over the procurement o f architectural and design services

could not be extended to the assailed negotiated procurement.

Badillo also posits that: 1) complainant failed to specify the overt acts

he supposedly performed to make him liable for the alleged irregularities; 2)

the Joint Decision ordering his dismissal from the service cannot be enforced

yet because he is still serving the six-month preventive suspension order

issued by this Office; 3) the penalty o f perpetual disqualification from

holding public office may not be carried out in the administrative

proceedings since the same is penal in nature, which only the courts or the

Sandiganbayan may impose; and 4) this Office committed forum shopping

when it filed the administrative and criminal cases against him.

12 The Government Procurement Reform Act.13 Id., pp. 7545-7565.

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LEONILA G. QUERIJERO (Querijero)14 reiterates that she could

not have participated in the alleged irregularities in the bidding that gave

unwarranted benefit to MANA or llilmarc’s since it was the BAC that

conducted the bidding and procurement activities for all the preliminary

stages and phases o f the construction o f the Parking Building.

Querijero avers that her signatures in the DVs are not enough to

support a finding that conspiracy exists among respondents. She emphasizes

that, as City Accountant, she had to rely in good faith on the certifications

and attestations of her subordinates.

CECILIO P. LIM III (Lim),15 citing the case o f Office o f the

Ombudsman v. Andutan,16 claims that this Office has no disciplinary

authority over him, as he was no longer a public officer when he resigned

from government service on 27 March 2013.

Lim stresses that he was not the Acting City Accountant during the

implementation o f Phases I and //.

RAYDES B. PESTANO (Pestano)17 alleges that she was not the

Acting City Accountant during the implementation o f Phases I to IV.

Lim and Pestano maintain that they signed the DVs based on

documents sufficient to prove the existence o f the contract, the delivery by

the contractor, and the acceptance by the City. They argue that the

documents supporting the DVs were complete as validated by the COA in its

contract review and technical and inspection reports, and that the fact that

COA passed the payments in audit readily shows that the documents

submitted were sufficient to release payments.

14 Id., pp. 7566-7570.15 Id., pp. 7838-7853.16 Supra, Note 9.17 Id., pp. 7709-7721.


Pestano also stresses that, while COA Circular Nos. 92-389 and 2 0 12-

GO 1 prescribe the minimum supporting documents for each type o f payment,

the circulars do not require that documents showing the proceedings o f the

BAC be submitted to the COA as many times as there are DVs. Thus, for

progress billings, the presentation o f the accomplishment reports is

sufficient.

Badillo, Querijero, Lim, and Pestano further emphasize the passing in

audit by COA o f the subject transactions, the lack o f Audit Observation

Memorandum or Notice o f Disallowance issued against them, and the fact

that were not members o f the BAC who could be held responsible for the

alleged irregularities in the procurement.

NELIA A. BARLIS (Barlis)18 reiterates that: 1) as City Treasurer,

she was not privy to, or had authority to determine the propriety o f the

proceedings in the procurement conducted by the BAC; 2) her participation

was only to certify in the DVs the availability o f funds, compliance with all

documentary requirements, and that the Accountant had certified to the

completeness o f the documents; and 3) the release o f the checks becomes

part o f her ministerial duty when the DVs have been duly accomplished and

approved by the local chief executive; and complainant failed to prove that

her certifications o f availability o f funds were improper.

LINE M. DELA PENA (I)ela Pena)19 reiterates that: 1) as then City

CPMO Chief, she received the Original Plans and Specifications o f the

Parking Building from then City Engineer Nelson B. Morales (Morales),

which she knew were submitted by MANA; 2) the certificate as to the

availability o f appropriation and the Original Plans and Specifications

became the basis for the preparation o f the Cost Estimates; 3) contrary to

this Office’s findings, the Accomplishment Reports and Certificates of

Completion were based on actual accomplishments showing that the

18 Id., pp. 7812-7829.19 Id., pp. 7830-7837.


construction plans were properly implemented and that the project was

completed within the period stipulated in the contract; and 4) that the

building itself is an existing proof o f the accomplishment o f the project.

RODEL R. NAYVE (Nayve)20 reiterates that: his participation as

Head o f the Technical Working Group (TWG) in the procurement o f Phases

I to V o f the Parking Building was limited to assisting the BAC in the

opening o f bids and in the post-qualification o f the bidder with the lowest

calculated bid; he was present during the pre-procurement, pre-bid, and

bidding conferences where he led the TWG in examining all the documents

submitted by the bidders; and the TWG did not participate in the

preparation, posting, and publication o f the IAETBs.

ARNEL L. CADANGAN (Cadangan)21 and CONNIE N.22 1 1CONSULTA (Consulta)'" assert that they prepared the Summary o f Cost

Estimates for Phases /, II, III (Cadangan), IV and V (Consulta) o f the

Parking Building based on the original plans and specifications submitted by

MANA.

EMERITO C. MAGAT (Magat)23 claims that he determined the

degree o f completion o f Phase III construction based on the plans given to

him by his superior, which he understood were submitted by MANA.

Cadangan, Consulta, and Magat further state that the Accomplishment24 • • 25Reports" and Certificates o f Completion" were based on their personal

inspection o f the implementation o f the construction phases and on their

findings that the same was in accordance with the standards o f their

profession, scope o f work, and terms o f the contracts.

20 Id., pp. 7790-7802.21 Id., pp. 7893-7900.22 Id., pp. 7742-7749.23 Id., pp.7729-7735.24 Cadangan for Phases / and II, Magat for Phase 111, and Consulta for Phases IV and V.25 Magat for Phase III.


MANOLITO N. UYACO (Uyaco)26 contends that this Office

committed error in finding him guilty o f Serious Dishonesty and Grave

Misconduct for his participation in Phases III, IV, and V construction on the

basis o f facts which were not alleged in the complaint.

GERARDO K. SAN GABRIEL (San Gabriel),27 ULYSSES E.

ORIENZA (Orienza),28 GIOVANNI I. CONDES (Condes),29 Uyaco, and

Amores maintain that the IAETBs for all phases were published and posted

in compliance with the law, the same having been certified by the Head of

the BAC Secretariat.

Uyaco and Condes insist that: the acts attributed to them were purely

ministerial duties they had to perform as Head o f the BAC Secretariat; there

was nothing illegal with their issuance o f notices o f pre-bid and bidding

conferences; and their signatures in the Post-Qualification Reports merely

signify the physical and mechanical preparation o f said reports and their

submission o f the same to the BAC, but not actual participation or

knowledge of the proceedings conducted by the TWO.

Uyaco, Orienza, San Gabriel, and Condes also assert that the

published IAETBs were complete as they need not contain the details on the

technical specifications o f the contract but only details concerning the name

o f the project, the Approved Budget o f the Contract (ABC), the dates o f the

pre-bid and bidding conferences, the period when the bidding documents

would be available, and the deadline for the submission o f bids; all other

details should be discussed during the pre-bid conference by the BAC in the

presence o f the prospective bidders.

26 Id., pp. 7777-7789.27 Id., pp. 7768-7776.28 Id., pp. 7736-7741.29 Id., pp. 7803-7811.

o f 29 JOINT ORDERSpecial Panel o f Investigators v. Jejomar Envin Binay, Jr., et al. OMB-C-A-15-0058 to OM B-C-A-!5-0063

Uyaco and San Gabriel also aver that complainant tailed to prove the

lack o f posting on the City’s website. Assuming that such was true, the

same did not render the publication incomplete.

Uyaco, Orienza, San Gabriel, and Condes deny being the author of, or

having any knowledge of, the falsification o f the newspaper publications. In

any case, upon having been alerted o f the alleged falsifications, respondent

Dasal already filed a criminal action before the Department o f Justice

against the publisher.

Amores, Uyaco, and San Gabriel claim that the IAETB for Phase V

was not falsified. Complainant’s evidence shows a copy o f Metro Profile

Cavite that was published on 31 July 2012 to 6 August 2012, while the

IAETB for Phase V was actually published by Metro Profile Manila on 31

July 2012.

Amores, Uyaco, Orienza, and Condes dispute this Office’s finding

that the BAC relied on mere copies o f the newspaper publications given to it

by the publisher’s representative, claiming that the BAC received original

copies o f the publications.

ELENO M. MENDOZA, JR. (Mendoza)30 reiterates that

complainant’s evidence allegedly showing his signature in the DVs and

checks relating to the payments made for Phase V failed to show that he had

signed in whatever capacity.31 Nevertheless, Mendoza explains that his

countersignatures as City Administrator on the pertinent checks were

ministerial based on COA Circular Nos. 92-382 and 2006-002; and that he

cannot be held liable for the irregularities in the procurement for Phase V

because it started as early as July 2012 and the contract was executed on 13

30 Id., pp. 7750-7767.31 Annexes “YY-3, YY-7” and “YY-7” o f the Complaint.

o f 29 JOINT ORDERSpecial Panel o f Investigators v. Jejomar Erwin Binay, Jr., et al. OM B-C-A-!5-0058 to OMB-C-A-15-0063

September 2012, while he was appointed as City Administrator only on 3

October 2 0 12.32

VIRGINIA S. HERNANDEZ (Hernandez)33 asserts that she

assumed the position o f Project Development Officer V, Chief o f the City

Planning and Management Office (CPMO) only on 29 July 2013 and that

she participated in the procurement and payment o f M A NA’s architectural

and design services only when the project was 100% completed.

Hernandez points out that, since she only assumed office on 29 July

2013, she could not have had any participation or responsibility over the

release o f payment for M ANA’s fourth billing which, as explained in the

assailed Joint Decision, was processed on 24 July 2013. She claims that the

only document that became the basis for her liability was issued on 9

September 2013, which does not refer to M ANA’s fourth billing.

Hernandez, Mendoza, and Uyaco also claim denial o f their right to

due process when this Office ordered the filing o f counter-affidavits despite

the insufficiency o f the complaint in form and substance, and allowing

complainant to present new evidence in its Reply.

NORMAN I). FLORES (Flores)34 reiterates that he merely

performed clerical tasks and was not authorized to receive any document for

and in behalf o f BAC and the BAC Secretariat; and that other than those

entrusted to him for encoding, he was not a custodian o f any bid documents.

San Gabriel, Pestano, Hernandez, Flores, Mendoza, Consulta, Magat,

Orienza, Nayve, Uyaco, Cadangan, Amores, Lim, Condes, Dela Pena, and

Querijero also assert that the finding o f conspiracy among respondents is not

52 Annex “ 1” o f Mendoza’s CA.33 Id., pp. 7700-7708.34 Id., pp. 7722-7728.

o f 29 JOINT ORDERSpecial Panel o f Investigators v. Jejomar Erwin Binay, Jr., et a! OM B-C-A-!5-0058 to OMB-C-A-15-0063

supported by positive and conclusive evidence that they acted in

acquiescence or agreement to cooperate in any scheme.

ISSUE/S

1. Whether the issuance o f the assailed Joint Decision violated

respondents’ right to due process;

2. Whether this Office prematurely issued the assailed Joint

Decision despite the pendency o f Binay, Jr.’s motions with this Office and

Petition for Certiorari with the Court o f Appeals;

3. Whether this Office committed errors in appreciating the facts

and evidence against respondents;

4. Whether the condonation doctrine may benefit Binay, Jr.;

5. Whether conspiracy among respondents should be established

by positive and “conclusive” evidence.

DISCUSSION

There was no violation of respondents’ right to due process.

Binay, Jr., Hernandez, Mendoza and Uyaco’s claim o f violation of

their right to due process is based on this Office’s order to submit their

respective counter-affidavits despite, so they allege, insufficiency o f the


complaint in form and substance, and allow complainant to present new

evidence in its Reply. Ocampo v. Abando, et al.i5 erodes this claim:

In the context o f a preliminary investigation, the right to due process of law entails the opportunity to be heard. It serves to accord an opportunity for the presentation of the respondent’s side with regard to the accusation. Afterwards, the investigating officer shall decide whether the allegations and defenses lead to a reasonable belief that a crime has been committed, and that it was the respondent who committed it. Otherwise, the investigating officer is bound to dismiss the complaint.

“The essence of due process is reasonable opportunity to be heard and submit evidence in support of one's defense." What is proscribed is lack of opportunity to be heard. Thus, one who has been afforded a chance to present one’s own side of the story cannot claim denial of due process, (emphasis supplied)

Office o f the Ombudsman v. Reyesib cites the guidelines to be

complied with to satisfy the due process requirement in administrative

proceedings, thus:

xxx Department o f Health v. Camposano restates the guidelines laid down in Ang Tibay v. Court o f Industrial Relations that due process in administrative proceedings requires compliance with the following cardinal principles: (1) the respondents’ right to a hearing, which includes the right to present one’s case and submit supporting evidence, must be observed; (2) the tribunal must consider the evidence presented; (3) the decision must have some basis to support itself; (4) there must be substantial evidence; (5) the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) in arriving at a decision, the tribunal must have acted on its own consideration of the law and the facts o f the controversy and must not have simply accepted the views o f a subordinate; and (7) the decision must be rendered in such manner that respondents would know the reasons for it and the various issues involved.

Respondents’ right to due process was thus not violated as they were

duly notified of and given an opportunity to be heard on the administrative

complaint filed against them. They in fact submitted their counter-affidavits

and position papers, and their separate rejoinders filed in response to

35 G.R. No. 176830, 11 February' 2014.36G.R. No. 170512, 5 October2011.


complainant’s Reply were taken into consideration in the marshalling o f

facts and evaluation of the evidence.

Additionally, respondents were duly furnished with copies o f the

assailed Joint Decision on account o f which they filed the present motions to

assail the same. Where lies the denial o f due process?

The assailed Joint Decision was not prematurely issued.

Binay, Jr.’s claim that this Office prematurely issued the assailed Joint

Decision since it failed to first resolve his motions and it pre-empted the

resolution o f issues raised in his Petition for Certiorari with the Court o f

Appeals is without merit.

Binay, Jr.’s pleadings, viz: Motion to Suspend Proceedings Pending

the Outcome o f Cases in the Court o f Appeals and the Supreme Court dated

12 May 2015, Motion for Reconsideration o f the Order dated 27 May 2015,

Motion to Resolve, and Motion for Clarification are all dilatory pleadings• • • 37 • • 38prohibited under Section 5 (g) o f Administrative Order No. 7. There was

thus no need to resolve these motions before the issuance o f the Joint

Decision.

Binay, Jr.’s Petition for Certiorari with the Court o f Appeals merely

prayed for the issuance o f a Temporary Restraining Order and/or Writ o f

Preliminary Injunction against the implementation o f this Office’s Joint

Order dated 10 March 20 1 539 which ordered his preventive suspension for

six months, and for the nullification o f said Joint Order for allegedly being

37 Section 5 (g) o f Administrative Order No. 7 provides that dilatory motions including, but not limited to, motions for extension o f time, for postponement, second motions for reconsideration and/or reinvestigation, shall be deemed prohibited and shall be stricken o ff the records o f the case.58 Rules o f Procedure o f the Office o f the Ombudsman.39 Record, pp. 0315-0329.


violative o f established law and jurisprudence. Said Petition did not raise

issues pertaining to the exercise o f this Office’s administrative jurisdiction

over him.

Trajano v. Uniwide40 instructs that the lower court should continue

with its proceedings despite the pendency of a petitioner’s petition for

certiorari, explaining that ‘the mere pendency of a special civil action for

certiorari commenced in relation to a case pending before a lower court

does not automatically interrupt the proceedings in the lower court,"

unless a temporary restraining order or a writ o f preliminary injunction

under Section 7, Rule 65 o f the Rules o f Court is issued to interrupt the

course o f the principal case.

Applying Trajano, since no injunctive writ or order was issued either

by the Court o f Appeals or the Supreme Court to suspend the proceedings

in these cases, there was no reason to await the resolution of the issues

brought to the higher courts before the assailed Decision was issued.

Respondents failed to show any newly discovered evidence or error committed by this Office in the appreciation of facts and evidence which was prejudicial to their interest.

The assailed Joint Decision sufficiently explained the irregularities

that attended respondents’ preparation and processing o f the payments to

MANA and Hilmarc’s. It pointed out in detail the respective acts of

respondents which were in violation o f law and the evidence in support o f

the findings with express reference to the provisions o f law violated.

40 G.R No. 190253, 11 June 2014.


On the other hand, respondents failed to point out any newly

discovered evidence which could materially affect the outcome o f the case,

or any error in the appreciation o f facts and evidence prejudicial to their

interest.

The other grounds raised in respondents’ motions for reconsideration

including lack o f conspiracy, good faith in the performance o f their duties,

reliance on the performance o f duties by subordinates, and absence o f COA

finding or notice o f disallowance are mere rehashes o f the arguments they

earlier raised which have been passed upon by this Office.

For clarification, however, this Office will dwell on some issues

raised by respondents.

Respondents’ claim that they submitted complete documents to the

COA in compliance with COA Circular No. 2009-01 does not suffice to

modify or reverse the findings against them. What those complete

documents were, they did not even furnish copies thereof to the Office. On

the other hand, from the documents secured by complainant from the COA,

it appears that the transactions with MANA and Hilmarc’s were not

supported with complete documents.

The claim o f Hernandez that her recommendation to release the

payment to MANA was issued on 9 September 2013 and did not refer to

M ANA’s fourth billing does not likewise suffice to warrant a reversal o f the

finding against her. If Hernandez is insinuating that there was a subsequent

billing alter the fourth, the suppression o f such document does not benefit

her. At any rate, her participation in the irregular action is clear as she

admittedly recommended the release o f payment to MANA.

o f 29 JOINT ORDERSpecial Panel o f Investigators v. Jejomar E m in Binay, Jr., et al. OMB-C-A-15-0058 to OMB-C-A-15-0063

Respondents’ insistence on the application o f the Arias doctrine

should be rejected. Nava v. Palattao41 calls for heads o f offices to exercise

“necessary diligence” in making sure that “proper formalities” in a

transaction are observed. The Supreme Court has repeatedly held in

subsequent cases42 that when there are facts that point to an irregularity and

the officer fails to take steps to rectify it, even tolerating it, as in the present

cases, the Arias doctrine is inapplicable.

De Veyra and Lim’s contention that they were no longer in

government service when the complaint was filed against them was not

substantiated with evidence.

Respondents’ claim that the copy o f Metro Profile Cavite, which they

allege was marked and attached as Annex “J9” o f the complaint, failed to

prove the falsification of the publication for Phase V, fails. An examination

o f the complaint and its annexes reveals that there is no such document.

There is, however, a copy o f the 31 July-6 August 2012 issue o f Metro

Profile Newspaper attached as “Annex UU-1” to the complaint. Such

Annex “UU-1’’negates the alleged Publisher’s Affidavit for Phase V, as it

did not contain such alleged Notice.

41 Venancio R. Nava v. Rodolfo G. Palattao, G.R. No. 160211, 28 August 2006, in which the Supreme Court held:

Although this Court has previously ruled that all heads o f offices have to rely to a reasonable extent on their subordinates and on the good faith o f those who prepare bids, purchase supplies or enter into negotiations, it is not unreasonable to expect petitioner to exercise the necessary diligence in making sure at the very least, that the proper formalities in the questioned transaction were observed -- that a public bidding was conducted. This step does not entail delving into intricate details o f product quality, complete delivery or fair and accurate pricing.

Unlike other minute requirements in government procurement, compliance or non-compliance with the rules on public bidding is readily apparent: and the approving authority can easily call the attention o f the subordinates concerned. To rule otherwise would be to render meaningless the accountability o f high-ranking public officials and to reduce their approving authority to nothing more than a mere rubber stamp. The process o f approval is not a ministerial duty of approving authorities to sign every document that comes across their desks, and then point to their subordinates as the parties responsible if something goes awry, (underscoring supplied)

42Cesa v. Office o f the Ombudsman, G.R. No. 166658, 30 April 2008; Office o f the Ombudsman v. Delos /teyes.G.R. No. 208976, 13 October 2014; Alfonso v. Office o f the President, G.R. No. 150091, 2 April 2007.


Record also negates respondents’ claim that the copies o f newspaper

publications given to them were original copies. Respondents’ copies o f the

Balita newspaper showing the publications o f the lAETBs for Phases I and

IV and the Erratum on the documents for Phase III clearly show that the

alleged published lAETBs were merely superimposed on the surface to

make it appear that they formed part o f the original published copies.

If respondents were indeed presented the “original copies” o f the

publications, they could not have not noticed the superimpositions made.

The condonation doctrine is not applicable to Binay, Jr.’s acts committed during his present term.

Binay, Jr.’s invocation o f the condonation doctrine is an implied

admission that he is guilty. That said, he, however, failed to dispute this

Office’s finding that he approved payments to MANA and Hilmarc’s during

his present term when he approved the fourth DV which covered the City’s

payment to MANA in the net amount o f P429,011.48 on 24 July 2013 and

one o f the payments to Hilmarc’s on 3 July 2013, without complying with

COA Circular No. 2012-001.

Binay, Jr.’s argument that the condonation doctrine should still be

applied since the above-mentioned payments made to MANA and Hilmarc’s

were made to implement contracts or transactions that were approved during

his previous terms43 cannot be sustained.

Binay, Jr.’s irregular acts o f approval o f the 24 July 2013 and 3 July

2013 payments to MANA and Hilmarc’s, respectively, during his present

term without complying with even the minimum supporting documents as

required in COA Circular No. 2012-001 are independent o f the act o f

43 Citing as basis Salalima v. Guingona and Garcia v. Mojica.


awarding the contract during his previous term and are separately governed

by the COA rules. Binay, Jr. cannot thus invoke the condonation doctrine in

his favor.

Parenthetically, Morales v. Court o f Appeals44 abandons the

condonation doctrine, albeit prospectively:

[T]his Court simply finds no legal authority to sustain the condonation doctrine in this jurisdiction. As can be seen from this discourse, it was a doctrine adopted from one class o f US rulings way back in 1959 and thus, out of touch from - and now rendered obsolete by - the current legal regime. In consequence, it is high time for this Court to abandon the condonation doctrine that originated from Pascual, and affirmed in the cases following the same, such as Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. which were all relied upon by the CA. (emphasis supplied)

The quantum of proof required to support a finding of guilt against respondents has been met.

Respondents’ contention that complainant failed to conclusively prove

the existence o f conspiracy among them and that they acted in acquiescence

or agreement to cooperate in any scheme fails.

It is settled that the quantum o f evidence required to support a finding

in administrative cases is substantial evidence. Office o f the Ombudsman

v. Dechavez45 teaches:

This Court cannot be any clearer in laying down the rule on the quantum of evidence to support an administrative ruling: In administrative cases, substantial evidence is required to support any findings. Substantial evidence is such relevant evidence as a reasonable mind may accept as adequate to support a conclusion. The requirement is satisfied where there is reasonable ground to believe that the petitioner is guilty o f the act or omission complained of, even if the evidence might not be overwhelming, (underscoring supplied)

44 G.R. Nos. 217126-27, 10 November 2015.45 G.R. No. 176702, 13 November 2013.


The pieces o f evidence presented by complainant and even by

respondents constitute substantial evidence o f respondents’ deliberate

participation in the irregularities in the procurement and release o f payments

for the design and construction phases o f the Parking Building.

WHEREFORE, the separate Motions for Reconsideration filed by

respondents JEJOMAR ERWIN S. BINAY, JR., MARJORIE A. DE

VEYRA, LORENZA P. AMORES, VIRGINIA S. HERNANDEZ, MARIO

V. BADILLO, LEONILA G. QUERIJERO, NELIA A. BARLIS, CECILIO

P. LIM III, ARNEL L. CADANGAN, LINE M. DELA PENA, GIOVANNI

I. CONDES, RODEL R. NAYVE, NORMAN D. FLORES, ULYSSES E.

ORIENZA, EMERITO C. MAGAT,CONNIE N. CONSULTA,

MANOLITO N. UYACO, GERARDO K. SAN GABRIEL, ELENO M.

MENDOZA, JR., and RAYDES B. PESTANO are DENIED for lack of

merit.

SO ORDERED.

18 January 2016, Quezon City, Philippines.

SPECIAL PANEL(Per Office Order No. 180 dated 09 March 2015)

Chairperson

Member


RACHEL CARIAGA-FAVILAMember

KARLA MARIA F. BARRIO,Member

A pprovedAB iscTpprtH^d:

J CGNCHlTA CARPIO MORAL ES_ Ombudsman 03 / (*

113720

Copy Furnished:

SPECIAL PANEL OF INVESTIGATORSRep. by: ATTY. MARIA TERESA L. LEE-RAFOLS Ombudsman Building, Agham Road, Diliman, Quezon City

JEJOMAR ERWIN S. BINAY, JR.8514 Caong St., San Antonio Village, Makati City

MARJORIE A. DE VEYRAMakati City Hall, J.P. Rizal Street, Poblacion, Makati City or 1181 JP Rizal Street, Guadalupe Viejo, Makati City

PIO KENNETH I. DASALLaw Department, 18Ih Floor, Makati City Hall, J.P. Rizal Street,Poblacion, Makati Cityor No. 5 Alice Crisostomo Street, BF Resort Village, Talon II, Las Pifias City

LORENZA P. AMORESMakati City Hall, J.P. Rizal Street, Poblacion, Makati Cityor 37 Switzerland Street, Better Living Subdivision, Paranaque City

VIRGINIAS. HERNANDEZFormer ChiefCentral Planning Management Office (CPMO) or 3247 A. Mabini Street, Poblacion, Makati City

MARIO V. BADILLODepartment of Engineering & Public Works,6lh Floor, New Makati City Hall Building, JP Rizal Street,Barangay Poblacion, Makati Cityor 2989 A. Bonifacio Street, Poblacion, Makati City

o f 29 JOINT ORDERSpecial Panel o f Investigators v. Jejomar Erwin Binay, Jr., et al OMB-C-A-15-0058 to OMB-C-A-15-0063

LEONILAG. QUERIJEROUniversity of Makati, J. P. Rizal Extension, Barangay West Rembo, Makati City or 18 Arellano Street, West Rembo, Makati City

RAYDES B. PESTANOMakati City Hall, J.P. Rizal Street, Poblacion, Makati City or 9246 Dita Street, Barangay San Antonio, Makati City

NELIA A. BARLISMakati City Hall, J.P. Rizal Street, Poblacion, Makati City or 888 Katihan Street, Poblacion, Muntinlupa City

ARNEL L. CADANGANCentral Planning Management OfficeDepartment o f Engineering and Public WorksMakati City Hall, J.P. Rizal Street, Poblacion, Makati CityorBlock 5 Lot 18 Verdant Heights, Timothy Street, Moonwalk Subdivision,Paranaque City

LINE M. DELA PENAMakati City Hall, J.P. Rizal Street, Poblacion, Makati City or 7723 Gonzales Street, Guadalupe Viejo, Makati City

GIOVANNI I. CONDESInternal Management Control OfficeMakati City Hall, J.P. Rizal Street, Poblacion, Makati Cityor B22 L7 Iron Road, Pilar Village, Almanza, Las Pinas City

RODEL R. NAYVETechnical Working Group, Makati City Hall, J.P. Rizal Street, Poblacion,Makati Cityor No. 6 Huntington Park, Laguna Bel-Air Subd. I, Don Jose, Sta. Rosa, Laguna or No. 4053-B Yague St., Ma. Dela Paz Village, Brgy. Singkamas, Makati City

ULYSSES E. ORIENZAGeneral Services Department, Makati City Hall, J.P. Rizal Street, Poblacion, Makati Cityor 2930 Kakarong Street, Olympia, Makati City

EMERITO C. MAGATCentral Planning Management Office Department of Engineering and Public Works,Makati City Hall, J.P. Rizal Street, Poblacion, Makati City or Lot 22 Block 16 Barangay Sta. Maria, Pedro Gil, Paco, Manila or 1887 Eureka Street, Barangay La Paz, Makati City

CECILIO P. LIM IIIMakati City Hall, J.P. Rizal Street, Poblacion, Makati City or 2726 Ma. Aurora Street, Poblacion, Makati City

CONNIE N. CONSULTACentral Planning Management Office Department of Engineering and Public Works,Makati City Hall, J.P. Rizal Street, Poblacion, Makati City or B5-L11 P3 Birmingham Homes, M. L. Quezon Ave., Extn.,Barangay Dalig, Antipolo Cityor Block 1 Lot 2 Phase 1 Canaria Street, Villa Montserrat, Taytay, Rizal


MANOLITO N. UYACOInternal Management Control OfficeMakati City Hall, J.P. Rizal Street, Poblacion, Makati Cityor Unit 3F T1 Escalades, 20th Avenue, Cubao, Quezon City

GERARDO K. SAN GABRIELGeneral Services DepartmentMakati City Hall, J.P. Rizal Street, Poblacion, Makati Cityor 509 Fort Dow Place, 1720 Escuela Street, Guadalupe Nuevo, Makati Cityor Unit B Miranila Townhomes, #77B Serrano, Cubao, Quezon City

ELENO M. MENDOZAMakati City Hall, J.P. Rizal Street, Poblacion, Makati City or 1452 Newton Street, Barangay San Isidro, Makati City

NORMAN D. FLORESGeneral Services DepartmentMakati City Hall, J.P. Rizal Street, Poblacion, Makati Cityor 1838 E. Rodriguez St., Extension, Barangay Carmona, Makati City

ATTY. FELICIANO B. CLEMENCIOCounsel for Marjorie A. De Veyra and Pio Kenneth I. Dasal4th Floor, ALCO Building, No. 391 Sen. Gil Puyat Avenue, Makati City

DAVID CUI-DAVID BUENAVENTURACounsel for Leonila G. QuerijeroSuite 1905-A, Philippine Stock Exchange Centre, West Tower, Ortigas, Pasig

ATTY. NELSON A. LOYOLA,Counsel for Mario V. BadilloSuites 201-202 Carreon Building, 2746 Zenaida Street, Poblacion, Makati City

THE HONORABLE SECRETARY DEPARTMENT OF FINANCERoxas Blvd., Manila

THE HONORABLE SECRETARYDEPARTMENT OF INTERIOR AND LOCAL GOVERNMENTD1LG-NAPOLCOM CenterEDSA comer Quezon Avenue, Quezon City

THE BOARD OF REGENTS UNIVERSITY OF MAKATIWest Rembo, Makati City

CIVIL SERVICE COMMISSIONConstitution Hills, Batasang Pambansa Complex Diliman, Quezon City

COMMISSION ON ELECTIONSPalacio Del Gobemador Bldg., General Luna St.Intramuros, Manila

GOVERNMENT SERVICE INSURANCE SYSTEMFinancial Center, Roxas Blvd., Pasay City

o f 29 JOINT ORDERSpecial Panel o f Investigators v. Jejomar Erwin Binay, Jr.. el al. OMB-C-A-15-0058 to OMB-C-A-15-0063

COMMISSION ON AUDITCommonwealth Avenue, Batasan Hills, Quezon City

ACTING MAYOR ROMULO PENAMakati City, Makati City Hall

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