Pre-Bar Review

Administrative Law

By DO Rodolfo M. ElmanAteneo de Davao Law School

Syllabus for 2015 Bar Exam in Administrative Law

• General Principles/Terms• Administrative Agencies

(Definition; Manner of Creation; Kinds)• Powers of Administrative Agencies

a. Quasi-Legislative (Rule Making)

1) Kinds of Admin Rules & Regulations

2) Requisites for Validity

b. Quasi-Judicial (Adjudicatory)

1) Administrative Due Process

2) Administrative Appeal and Review

3) Administrative Res Judicata

c. Fact-Finding, Investigative, Licensing and Rate-Fixing Powers

• Judicial Recourse and Review

a. Doctrine of Primary Administrative Jurisdiction

b. Doctrine of Exhaustion of Administrative

Remedies

c. Doctrine of Finality of Administrative Action

Illustration of an easy MCQ

• Which of the following is not a doctrine in Administrative Law:

a) Doctrine of Qualified Political Agency

b) Doctrine of Exhaustion of Administrative Remedies

c) Doctrine of Dependent Relevant Revocation

d) Doctrine of Assimilation of Facts

• Types of administrative bodies: (BQ)

~those offering some gratuity or privilege

~those seeking to carry on certain business of government

~those performing business service for the public

~those seeking to regulate business affected w/public interest

~those seeking under police power to regulate private business & individuals.

~to adjust individual controversies xxx

Admin Terms/Concepts• Republic of the Philippines (or GRP) as

distinguished from National Government

• Issue: Whether CB is part of National Government. CB is a government instrumentality created as an autonomous body under RA 265 as amended to administer the monetary and banking sytem (CB vs. Ablaza)

• Are GOCCs embraced in term GRP? (BQ)

MCQ: Which of the following is not included in the definition of GRP/RP?

a) Autonomous regions

b) Local government units

c) State universities and colleges

d) Governnment-owned and controlled corporations performing proprietary functions

Instrumentality as defined in EO 292

• any agency of the National Gov't not integrated w/in the department framework, vested with special functions or jurisdiction by law & enjoying operational autonomy

• Status of the Manila International Airport Authority: not a GOCC but instrumentality of National Gov't vested with corporate powers to perform efficiently its gov’tal functions. When the law vests in the instrumentality corporate powers, it remains a govt instrumentality exercising gov’tal powers (eminent domain xxx) but also corporate powers under Corp. Law.

• Following Sec. 2 of EO 292, the National Power Corporation is an instrumentality of govt; VM Rambuyong cannot appear as counsel before any court in civil case vs. LGU or instrumentality [NPC] Sec. 90 LGC (Rep vs. Rambuyong, 632 SCRA 66).

• NPC is government instrumentality tasked to undertake development of hydroelectric generation of power & production of electricity from other sources xxx to improve quality of life of people pursuant to the State policy in Art. ll Sec. 9 Const. (Maceda vs. Macaraig, 197 SCRA 771).

• Status of Iron and Steel Authority: a non-incorporated agency or instrumentality of the GRP under PD 272 and EO 555. When its statutory term expires, the powers, duties & functions as assets & liabilities of that agency revert back to and reassumed by the GRP. Expiration of ISA term did not justify dismissal of of eminent domain proceeding (ISA vs. CA, 249 SCRA 539).

MCQ• An agency of the government refers to any of

the various units of the government, including a department, bureau, office, instrumentality, or GOCC, or a local government unit. Given the foregoing definition, which of the following is not an agency of the government?

a) DPWH

b) Land Transportation Office

c) Philippine Ports Authority

d) Land Bank of the Philippines

Doctrine of Primary Jurisdiction• courts cannot & will not determine a

controversy involving a question w/in the jurisdiction of an admin tribunal, especially where the question demands the exercise of sound admin discretion requiring special knowledge…

• it applies whenever enforcement of a claim requires resolution of an issue within the special competence of administrative body

• 2 reasons for the doctrine

~DENR is responsible for enforcement of forestry laws; forest products in custodia legis of the CENRO cannot be subject of replevin before the court (Sagip Kalikasan vs. Judge Paderanga, 19 June 2008).

~Authority of Bureau of Immigration to decide deportation case vs. an alleged alien and in the process determine citizenship issue raised by the deportee. Mere claim of citizenship will not divest the Board of its jurisdiction.

(Go, Sr. vs. Ramos, 598 SCRA 268)

• What is the exception to the primary jurisdiction of the Bureau of Immigration over deportation cases and where judicial intervention is allowed?

*when the court itself believes that there is substantial evidence supporting the deportee’s claim of citizenship & there are reasons to believe that the claim is correct; or when the evidence submitted by the deportee is conclusive of his citizenship.

Commision on the Settlement of Land Problems (COSLAP) [EO 561]

• Authority of COSLAP to resolve land disputes is limited only to those involving public lands or those covered by specific license from the government, i.e. pasture lease agreements, timber concessions or reservation grants.

• No jurisdiction over Gatdula’s complaint for right of way, the property being private. Lack of jurisdiction cannot be cured by parties’ participation (Machado vs. Gatdula & COSLAP, 02/16/10)

• The rule on primary jurisdiction applies only where the administrative agency exercises quasi-judicial or adjudicatory functions. This is an essential requirement for this doctrine to apply. Here, petitioners have not shown that CHED possesses any such power to “investigate facts or ascertain existence of facts, hold hearing & draw conclusions.” Sec. 8 of RA 7722 (Higher Education Act of 1994) does not contain any express grant to CHED of quasi-judicial power (UST vs. Sanchez, 626 SCRA 127).

• The doctrine applies only whenever it is the court and the administrative agency which have concurrent jurisdiction. The doctrine is inapplicable where there is concurrence of jurisdiction between two disciplining authorities over a case.

• Example of concurrence between two administrative disciplinary bodies

*Laxina vs. OMB, 471 SCRA 544 (doctrine of primary jurisdiction is not applicable in this case).

HLURB (PD 957/PD 1344)• Claims/cases over which the HLURB has exclusive

jurisdiction (Sec.1, PD 1344)• specific performance w/damages for delivery of title

(CT Torres vs. Hibionada, 191 SCRA 268)• reimbursement of expenses incurred by homeowners in

repairing their defective housing units constructed by the developer (HLC Const. vs. Emily Homes Homeowners, 411 SCRA 504)

• HLURB has authority to impose administrative fines but not criminal penalties (Chua vs. Ang, 598 SCRA 321)

• HLURB is competent to award damages.

HLURB • declare void a mortgage of lot done in violation of PD 957

and annul a foreclosure sale (Home Bankers vs. CA, 547 SCRA 167)

• mere allegation of relationship bet. subd. owner and lot buyer does not vest automatic jurisdiction in HLURB. Decisive element is the nature of the action as enumerated in Sec. 1, PD 1344 (Cadimas vs. Carrion, 567 SCRA 103)

• HLURB – and not SEC – has jurisdiction over complaint vs. developer (under receivership) for specific performance regarding homeowners’ needs (Arranza vs. BF Homes, 333 SCRA 800).

Securities Regulation Code (RA 8799)

• Amended PD 902-A and transferred jurisdiction of SEC over intra-corporate cases to the courts. (Ex. Petitions for rehabilitation filed by corporations, associations & partnerships)

• A criminal charge for violation of the code is a specialized dispute that should first be looked into by the SEC and if it finds probable cause, it should refer to the DOJ for PI. Failure to comply w/this requirement justifies dismissal by DOJ of complaint (SEC vs. Interport Resources Corp., 567 SCRA 365). Note: Investigation by SEC interrupts prescription period.

Toll Regulatory Board (PD 1112)

• Remedy of the interested expressway user who finds the toll rate adjustments to be onerous, oppressive and exorbitant: file a petition for review of the adjusted toll rates w/TRB whose decision is appealable to the Office of the President.

(Padua vs. Ranada, 390 SCRA 664)

• TRB is w/sufficient power to grant a qualified person or entity w/ authority to construct, maintain & operate a toll facility & issue the corresponding toll operating permit or Toll Operation Certificate (TOC).

• Distinction bet. fixing of initial toll rates and fixing of periodic/interim or subsequent toll rates: The hearing required under PD 1894 refers to notice & hearing for the approval or denial of petitions for toll rate adjustments – or the subsequent toll rates, not to the fixing of initial toll rates w/c is w/o necessity of hearing unless a challenge on the initial toll rates fixed ensues that public hearings are required (Francisco vs. TRB, 633 SCRA 470).

Quasi-Judicial Power

• express empowerment by law; merely incidental and in aid of main function

• the action or discretion of admin. officers to investigate facts and draw conclusions from them as basis for their official action

• involves: a) taking and evaluating evidence; b) determining facts based upon the evidence presented; and c) rendering an order or decision supported by the facts proved.

Cases• Action of POEA to grant, deny, suspend,or revoke

license of any private placement agency (Sanado vs. CA, 356 SCRA 546)

• A PI is not a quasi-judicial proceeding, and DOJ is not a quasi-judicial agency when it reviews findings of the prosecutor re presence of probable cause (Balangauan vs. CA, 562 CRA 186).

• Board empowered to withdraw conferment of degree founded on fraud (UP Board of Regents vs. CA, 313 SCRA 404).

• CHR has power to investigate all forms of human rights violations involving civil & political rights. Fact-finding is not adjudication (2001 BQ Carino vs. CHR, 204 SCRA 483).

• Power of NTC to issue CPCN for installation, operation & maintenance of communication facilities & services and determine the area of operation of applicants for telecommunication services (Eastern Telecom vs. Int’l Communication Corp., 435 SCRA 55). The grant by NTC to ICC to operate in areas covered by petitioner is not a grave abuse of discretion. NTC took into account ICC’s technical & financial capabilities and policy of healthy competition.

• No quasi-judicial powers have been vested in the PTC as it cannot adjudicate rights of persons who come before it. Quasi-judicial powers involve the power to hear and determine questions of fact to w/c the legislative policy is to apply and to decide in accordance with the standards laid down by law itself in enforcing and administering the same law (Biraogo vs. PTC, 637 SCRA 78).

MCQ: A determination or decision of an administrative agency can normally be enforced only pursuant to the provisions of law. In the absence of such statutory provision,

a) the agency will simply petition the court to issue writ of execution.

b) it is implied that the agency can promulgate the rules for enforcing its order.

c) a party favored by the agency’s order may file a case in court for recognition and enforcement.

d) the order cannot be enforced and is merely advisory or recommendatory. *

Forum Shopping

• It exists when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another, or when he institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favorable disposition.

Rule vs. Forum Shopping• applies to quasi-judicial proceedings.• test of violation: a) where the elements of litis

pendenti are present; or b)where final judgment in one case will amount to res judicata in the other.

• requirement to file certificate of non-forum shopping, although not jurisdictional, is mandatory; if not complied, summary dismissal is warranted.

• certification signed by counsel alone is defective, unless clothed with special authority.

Cases• General rule: certificate must be signed by all

plaintiffs in a case; exception: they have common interest or filed the case as a collective, raising only one common cause of action or defense (HLC vs. Emily Homes Homeowners Assn., 411 SCRA 504)

• Rule is not applicable to agency not exercising judicial or quasi-judicial function (Cabarrus vs. Bernas, 279 SCRA 388) or the cases do not raise identical causes of action (Velasquez vs. Hernandez, 437 SCRA 358)

• No forum shopping since CHED is w/o quasi-judicial power and cannot make any disposition of the case (UST vs. Sanchez, 626 SCRA 127)

• In administrative cases involving the concurrent jurisdiction of two or more disciplining authorities, the body in which the complaint is filed first, and which takes cognizance of the case, acquires jurisdiction to the exclusion of other tribunals exercising concurrent jurisdiction. When complainants first filed the complaint in OMB, jurisdiction was already vested on the OMB & could no longer be transferred to the SB by virtue of a subsequent complaint by the same complainants (Ombudsman vs. Rodriguez,

625 SCRA 299)

Quasi-Legislative Power• A relaxation of principle of separation…• Requirements for validity of rules (germane; conform to standards;

relate solely to carrying into effect the provisions of law)• If issued in excess of rule making authority, no binding effect upon

the courts; treated as mere administrative interpretations of the law• Mere absence of implementing rules cannot effectively invalidate

provisions of law, where a reasonable construction may be given.• Statute authorizing Pres. to suspend operation of law upon

happening of act or event the ascertainment of which is left to the Pres. is not an undue delegation.

Cases• Rev. Memo Circular 7-85 (change of prescriptive period of

2 yrs. to 10 yrs. on claims of excess quarterly income tax payments) inconsistent with the NIRC; no vested rights arising from wrong construction of law (Philbank vs. Commissioner of Internal Revenue, 302 SCRA 241).

• AO 308 providing for adoption of a national computerized identification reference system is unconstitutional. Its establishment requires a delicate adjustment of various contending state policies, the primacy of national security etc. It deals w/a subject that should be covered by law (Ople vs. Torres, 293 SCRA 141).

• LBC of DBM setting a maximum limit to the additional allowances to be given by LGU to national government officials (P1000/P700) is invalid because it goes beyond the law. Sec. 458 of LGC allows the grant “when the finances of the LGU allow.” It does not authorize setting a definite maximum limit to the additional allowances (Dadole vs. COA, 393 SCRA 272).

• PRC resolution prohibiting attendance in accountancy review classes is not valid. It violates examinees’ right to liberty & the academic freedom of schools (Lupangco vs. CA, 160 SCRA 848).

• MECS Order phasing out Spanish is not a violation of right to due process of those affected (Confederacion National vs. Quisumbing, 26 January 1988).

• Board of Examiners for Nursing regulation for period inspection is valid (Sand vs. Abad Santos Educational Inst., 18 July 1980).

• Revenue issuance empowering the BIR Commissioner to update classification of cigarette brands every 2 years is not valid. Nowhere in NIRC is such authority granted to BIR (British American Tobacco vs. Camacho, 562 SCRA 519).

• HDMF BOT (1995) Amendments to IRR providing both provident/retirement and housing benefits is not valid as it amended RA 7742 (Romulo & Mabanta vs. HDMF, 333 SCRA 777).

• Creation of new AFP Anti-Graft Board thru PCGG issuance is not in accord with EO 1 (Republic vs. Migrino, 189 SCRA 300).

• While GSIS has authority to create a financial scheme, it is limited only to those availing of early retirement due to reorganization in GSIS but are not yet qualified for either optional or compulsory retirement. The Retirement Financial Plan (RFP) adopted by GSIS Board is void as it is not an early retirement scheme but is a form of reward for an employee’s loyalty and lengthy service in order to help him enjoy the remaining years of his life. The RFP is a supplementary retirement plan prohibited by the Teves Retirement Law (GSIS vs. COA, 10/19/11).

• Mere absence of implementing rules cannot invalidate law. That Full Disclosure Rules was promulgated by SEC only on 07/24/96 while Revised Securities Act was approved on 02/23/82 does not render ineffective the law where it contains sufficient standards and an unmistakable intent and where a reasonable construction may be given. To rule otherwise would empower admin bodies to defeat the legislative will by delaying the implementing rules (SEC vs. Interport Corp., 567 SCRA 354).

• EO 420 directing all gov’t agencies to adopt a unified multi-purpose ID system does not usurp legislative power. Two ways to achieve unified ID system, intended to reduce cost and ensure greater convenience: 1) Heads of gov’t entities can enter into MOA to adopt a uniform ID format. This is purely admin matter; and 2) President, pursuant to her power of control, can direct thru exec. or admin order the gov’t entities under Exec. Dept to adopt uniform ID format (KMU vs. Director General, 487 SCRA 623).

• Following the leakage in 2006 nursing exam, Pres. GMA replaced the members of Board of Nursing and issued EO 566 w/c authorized the CHED to supervise the operation of all review centers. Said EO is invalid & a usurpation of legislative function. The mandate of CHED under RA 7722 extends only to public/private institutions of higher learning & degree-granting programs in post-secondary educational institutions, but not over review centers. A review center is not an institution of higher learning (Review Center vs. Exec. Sec., 583 SCRA 428).

Fiscal Autonomy• entails freedom from outside control and

limitations, other than those provided by law; a guarantee of full flexibility to allocate & utilize their resources. It recognizes the power to levy, assess and collect fees, fix compensation rates not exceeding the highest rates authorized by law and allocate and disburse such sums as may be provided by law; formulate and implement their organizational structure and compensation of their personnel.

• While the agencies enjoying fiscal autonomy are authorized to formulate and implement the organizational structure of their respective offices and determine the compensation of their personnel, such authority is not absolute and must be exercised within the parameters of the Unified Position Classification and Compensation System (UPCCS) under RA 6758.

Cases• Upgrading/creation of FMO and PAO in CHR. CHR is

not in the genus of offices accorded fiscal autonomy by constitutional or legislative fiat. Fiscal autonomy is a constitutional grant and not a tag obtainable by membership. CHR cannot lawfully implement an upgrading and reclassification of positions w/o DBM approval because DBM has sole power to administer the UPCCS (CHREA vs. CHR, 444 SCRA 300).

• CHR has privilege of having its approved annual appropriations released automatically and regularly, but not fiscal autonomy in its extensive/broad sense (CHREA vs. CHR, 496 SCRA 227).

• CSC petition for mandamus to release P5.8M withheld amount (FY ‘02) re: “no report, no release” DBM policy and alleged revenue shortfall. SC ruling: DBM withholding is unconstitutional. Funds should be automatically and regularly released w/o any condition imposed. When there is revenue shortfall, priority in releases …should be given to CFAG over all other agencies, unless total revenue collections are insufficient to cover total appropriations of agencies with fiscal autonomy (CSC vs. DBM, 7/22/05).,,

• re:clarifying 481 scra 1

Gsis vs heirs of caballero , 10/04/10

In re coa computation 676 scra 579 undergusra

ntees of fiscal autonomy, sc decide the trms and

condition and restrictions of the grant of privile

gex or benefitd to court personnel or ofgicisls

• DBM is w/o authority to downgrade SC positions & salary grades of Chief Judicial Staff Officer (SG 25) and Supervising Judicial Staff Officer (SG 23). DBM encroached upon SC’s fiscal autonomy and supervision of court personnel. The DBM authority to review SC plantilla/compensation extends only to “calling SC attention” on alleged erroneous application of budgetary laws & rules. Only then may SC amend or modify its resolution as its discretion may dictate (Re: Clarifying & Strengthening of the Organizational Structure & Admin Set-up of PHILJA, 481 SCRA 1).

MCQ Example

• Which of the following public official can exercise the Doctrine of Augmentation?

a) Presiding Justice of the Sandiganbayan

b) CSC Chairman

c) Solicitor General

d) Chairman of the Commission on Human

Rights

Which of the following violates the judiciary’s fiscal autonomy?

a. An item in 2011 General Appropriations Act allowing P13.5B to the judiciary, the same as last year’s allocation but 50% less than the SC proposal; valid

b. A letter of the DBM Secretary to the Chief of the Budget Office of the SC requesting for data on the Judiciary Discretionary Funds from 2005 up to the present; * violated the giscak auto. Cant be looked upon the dbm

c. The President veto of an item in 2011 GAA allocating P900M as a supplemental fund for retired members of the judiciary; it is just a proposal which is primarywithin the power of the pres

d. A COA circular requiring all government offices to submit post-procurement report at the end of each fiscal year. Valid voz vo

Power to issue subpoena• Admin agencies have no inherent power to require

attendance of witnesses.• Sec. 13 & 37, Ch. 3, Bk. Vll, EO 292: admin bodies

have power in any contested case to require attendance of witnesses, or take or receive evidence xxx. Authority to take testimony includes power to administer oath, summon witnesses and require production of documents by a subpoena duces tecum.

• Disobedience to subpoena or refusal to be sworn in may be punished as contempt.

• administrative subpoena distinguished from judicial subpoena

• When may a subpoena be enforced?

~if the inquiry is within the authority of the agency, the demand is not too indefinite and the information is reasonably relevant (Evangelista vs. Jarencio, 68 SCRA 99)

Power to punish contempt• should be clearly defined and granted by law and

its penalty determined. In the absence of law, admin agency may invoke the aid of RTC.

• limited to making effective the power to elicit testimony and it cannot be exercised in furtherance of administrative functions; this limitation derives from its nature being inherently judicial & need for preservation of order in judicial proceedings.

• OMB has power to punish for contempt in accordance with Rules of Court (Lastimosa vs. Vasquez, 06 April 1995).

Implementing Rules or Interpretative Policies

• Admin bodies have authority to interpret meaning of the law.

• not binding upon courts but have force/ effect of law and entitled to great respect.

• reasons for sustaining decision of administrative bodies: on basis of separation of powers and their knowledgeability and expertise.

• Abrogation or repeal of previous acts or rulings of predecessor in office.

• Requisites for validity of administrative rules and regulations

*must be issued under authority of law; must be within the scope & purview of the law; must be reasonable; & must be published.

• Art. 2, Civil Code (as amended by EO 200)• What need to be published?

*issuances of general applicability as their purpose is to enforce existing laws.

• To be effective, administrative rules and regulations must be published in full if their purpose is to enforce implement existing law pursuant to a valid delegation. IRR of RA 9335 (Attrition Act – rewards xxx for BIR & BOC) were published on May 30, 2006 in a newspaper of general circulation & became effective 15 days thereafter. Until and unless the contrary is shown, the IRR are presumed valid and effective even without the approval of the Joint Congressional Oversight Committee (Abakada Guro Party List vs. Purisima, 562 SCRA 260).

• The SEC violated due process when it denied the public prior knowledge of SEC 1990 Circular removing the filing fee ceilings provided for in SEC 1986 Circular. The 1990 SEC Circular was not yet effective during the time PICOP filed its request in 2002 to extend its corporate existence as the SEC filed said Circular w/ UP Law Center only in 2004. The OP and the CA were correct in declaring that the applicable filing fee payable by PICOP is P100T as computed under the 1986 Circular, instead of P12M SEC assessment under the 1990 Circular (SEC vs. PICOP, 566 SCRA 453) .

Cases• EO 79 providing for compulsory membership in

GSIS of qualified reserve AFP officers like Gen. Asuncion is effective 15 days after its publication in OG on 12/22/86 (GSIS vs. COA, 301 SCRA 736).

• DBM Circular disallowing payment of allowances & other compensation to government officers is of no force & effect due to absence of publication in OG or newspaper xxx. That it was reissued & submitted for publication in OG does not cure the defect and retroact to date of disallowance (Phil. International Trading vs. COA, 309 SCRA 177).

Publication is a condition precedent.

• Facts: The COMELEC & DOJ created a Joint Comm. & a Fact Finding Comm. to investigate election fraud during the 2004/ 2007 elections. The Comm. Conducted PI vs. Mike Arroyo, GMA & Abalos. They argued that the PI was not valid because the Rules of Procedure were not published HELD: Even if the Rules of Procedure were ineffective for lack of publication, the proceedings were not null & void because the PI was conducted pursuant to Rule 112 of the Rules on Crim. Procedure & the 1993 Comelec Rules of Procedure (Arroyo vs. DOJ, 681 SCRA 181).

• POEA Circular not filed with the National Administrative Register cannot be used as basis for imposition of administrative sanctions and is ineffective and may not be enforced; a requisite under Secs. 3 & 4, Bk Vll, EO 292 (Philsa International Placement Corp. vs. Labor Secretary, 356 SCRA 174). That it is addressed to specific group, i.e. private employment agencies, does not exclude it from publication requirement.

• Rules imposing a penalty as authorized by the law itself must be filed & registered w/ UP Law Center (Secs. 3 & 4, Bk. Vll, EO 292).

• The 1978 NTC Rules ought to apply in the grant of provisional authority to BayanTel despite filing of 1993 Revised Rules with UP Law Center. The 1993 NTC RR should have been published in OG or newspaper of general circulation before it can take effect. Filing of the 1993 NTC RR w/ U.P. Law Center is not the operative act that gives the RR force & effect. The National Admin Register is merely a bulletin of codified rules… (Republic vs. Express Telecom, 373 SCRA 317).

• OMB-DOJ Joint Circular 95-01 is merely internal bet. the DOJ & the OMB, outlining the authority & responsibilities among prosecutors in conduct of PI. Said circular does not regulate the conduct of persons or the public in general, nor does it contain any penal provision or prescribe a mandatory act. Hence, it need not be published (Honasan vs. DOJ Panel, 4/13/04). Note: superseded by OMB-DOJ MOA dated 3/29/12

• What need not be published? *Interpretative regulations and those merely internal in

nature, i.e regulating only the personnel of the agency and not the public.

*LOIs issued by administrative superiors concerning rules to be followed by subordinates

• RA 3531 authorizes SEC to collect filing fees for amendments extending corporate existence. SEC Circular # 1 imposing a filing fee of 1/10 of 1% of AC plus 20% thereof [or the amount of P1,212,200.00 on GMA] for amendments extending corporate existence is not a mere interpretation or an internal rule. It needs to be published as it implements mandate of RA 3531 and it affects public (SEC vs. GMA Network, 575 SCRA 113).

• Resolution No. 372 was about the new GSIS salary structure, Resolution No. 306 was about the authority to pay the 2002 Christmas package, and Resolution No. 197 was about the GSIS merit selection and promotion plan. Clearly, the assailed resolutions pertained only to the internal rules meant to regulate GSIS personnel. There was no need for publication or filing of these resolutions with the UP Law Center (BOT of GSIS vs. Velasco, 02/02/11).

Requirements of Administrative Due Process

1. Impartial tribunal *Sec. 9 (Fabella vs. CA, 282 SCRA 256)2. Due notice & hearing or opportunity to be heard *Emin vs. De Leon, 378 SCRA 143 *Alcala vs. School Principal Villar, 11/18/03 *Jurisdiction is a matter of law & once acquired, is not lost

upon the instance of the parties (OMB vs. Estandarte, 521 SCRA 155)3. Procedure consistent w/essentials of fair play4. Proceedings conducted to give opportunity for court to

determine whether the applicable rule of law and procedure were observed.

• CSC has no original jurisdiction over an admin case vs. a public school teacher as jurisdiction is lodged with the Investigating Committee under Sec. 9 of RA 4670. Still, the SC affirmed dismissal from service of petitioner for dishonesty (for faking CS eligibilities of certain teachers for a fee) as he was sufficiently afforded due process by CSC. He answered the charges & participated in hearings. He is barred under principle of estoppel by laches to impugn CSC jurisdiction (Emin vs. De Leon, 378 SCRA 143).

• School Principal Villar is barred under principle of estoppel by laches from assailing the jurisdiction of OMB since his right to procedural due process was properly observed. Not only did he file his CA and MR from decision dismissing him for dishonesty, he also participated in hearings conducted by OMB-VIS & was given the opportunity to cross-examine witnesses vs. him (Alcala vs. Villar, 11/18/03).

• Note: OMB Act (RA 6770) recognizes the existence of some “proper disciplinary authorities” such as Investigating Committee of DepEd under RA 4670. Sec. 23 of RA 6770 directs that OMB may refer certain complaints to the proper disciplinary authority for institution of appropriate admin proceedings vs. erring public officers. Thus, the administrative disciplinary authority of the OMB over a public school teacher is not exclusive but concurrent (OMB vs. Medrano, 569 SCRA 749). OIC Principal Medrano who was dismissed for sexual harassment is now barred from assailing OMB juris. in an MR.

Nature of Sec. 9, RA 4670

• Sec. 9 of RA 4670 does not confer exclusive disciplinary authority to the DepEd over public school teachers nor does it prescribe an exclusive procedure in administrative investigation involving them. Section 9 refers only to specific procedure to be followed by DepEd in administrative investigation (Ombudsman vs. Masing, 542 SCRA 253).

Due Process in Admin Proceedings

• What it includes: 1) right to actual or constructive notice to the institution of proceedings; 2) real opportunity to be heard personally or with counsel & to present evidence; 3) impartial tribunal vested with competent jurisdiction; and 4) finding by said tribunal w/c is supported by substantial evidence…known to parties affected.

Case on admin due process• Petitioners were not denied due process by

the fact that CSC acted as investigator, complainant, prosecutor and judge. CSC is mandated to hear & decide admin cases instituted by it or instituted before it directly or on appeal. CSC is still impartial judge so long as its decision was based on substantial findings (Cruz vs. CSC, 370 SCRA 650). [Mun. Treas. Zenaida Paitum took CS Prof. Exam on behalf of Cruz].

Distinction between Sec. 12 and Sec. 47 of EO 292

• Sec. 12 refers to CSC authority to institute directly and motu proprio admin cases of dishonesty & falsification, intended to administer CS system & protect its integrity by removing from list of eligibles those who falsified their qualifications; Sec. 47 refers to the ordinary disciplinary proceedings intended to discipline a bona fide member of the system (CSC vs. Albao, 472 SCRA 548). [EA Albao stated in PDS he passed Elec. Engr. Exam].

Cases on Admin Due Process• Decision of Gozon as Director of Mines being

reviewed on appeal by him as Secretary (Zambales Mining vs. CA, 94 SCRA 261)

• Labor Arbiter Aquino promoted to Commissioner of NLRC which reviewed his decision (Singson vs. NLRC, 274 SCRA 358)

• NTC order reviving the archived application of BayanTel, w/o notice to Extelcom, does not violate due process. Extelcom still has opportunity to be heard during full-blown adversarial hearings (Republic vs. Express Telecom, 373 SCRA 319).

Procedural vs. substantive due process• Procedural due process refers to the method or

manner by w/c the law is enforced, while substantive due process requires that the law itself – not merely the procedures by which the law is enforced – is fair, reasonable and just.

• As applied to tenurial protection accorded to a civil servant, procedural due process requires that the dismissal be effected only after notice & hearing, while substantive due process requires, among others, that the dismissal be for legal cause (Lacson vs. PAGC, 30 May 2011).

• While GSIS Act gives Gen. Mgr. the authority to discipline GSIS personnel, this must be in accord w/CS rules. Under CSC Unified Rules, upon receipt of complaint sufficient in form & substance, disciplining authority shall require person to submit CA or comment under oath. The PI must be done prior to issuance of formal charge. The filing by petitioner of formal charges vs. respondents without complying with mandated PI or giving them opportunity to comment violated their right to due process. Formal charges are void & may be assailed anytime (Garcia vs. Attys. Molina & Velasco, 627 SCRA 541).

• A basic requirement of due process is that a person must be duly informed of the charges vs. him & he cannot be convicted of an offense with which he was not charged (CSC vs. Lucas, 301 SCRA 560).

• Petitioner was not denied due process when on her filing an MR from the decision reprimanding her, she was given opportunity to be heard on the witnesses’ affidavits belatedly furnished her – by directing her to file any pleading (Ruivivar vs. Ombudsman, 565 SCRA 325).

• The “complaint” under EO 292 and CSC on administrative cases both refer to the actual charge to which a person complained of is required to answer and indicate whether or not he elects a formal investigation should his answer be deemed not satisfactory. The unverified complaint filed vs. Gaoiran w/ CHED is not the “complaint” w/in purview of EO 292. It merely triggered a FFI (Gaoiran vs. Alcala & Castillejo, 444 SCRA 420).

• Due process in an administrative context does not require trial-type proceedings similar to those in courts (UP Board of Regents vs. CA, 313 SCRA 404). So long as a party is afforded fair & reasonable opportunity, the requirement of due process is complied with.

• Service of summons or order on OSG; Deputized special attorney has no legal authority to decide whether an appeal should be made (NPC vs. NLRC, 272 SCRA 707).

MCQ Illustration• The law provides that an admin complaint must be verified &

filed w/the proper gov’t office. Will failure to conform w/ verification requirement cause the dismissal of the complaint?

a) Yes. It is not only a formal but a jurisdictional requirement.

b) Yes. It will determine the truthfulness & genuineness of the allegations.

c) No. Lack of verification is not fatal but only a formal defect.*

d) No. Technical rules of procedure are not applicable in administrative cases.

• Due process clause does not encompass right to be assisted by counsel. Counsel’s assistance in admin proceedings is not an absolute requirement, regardless of nature of charge & respondent’s capacity to represent himself. No duty rests on admin body to furnish the person investigated with counsel (DAR RD Lumiqued vs. Exevea, 282 SCRA 125).

• Jurisdiction acquired at time of filing of the complaint is not lost by cessation in office of respondent during pendency of case. The body retains its jurisdiction either to pronounce respondent official innocent of the charges or declare him guilty thereof (Perez vs. Abiera, 62 SCRA 302).

• Where a party appears by counsel in an action in court or admin body, all notices required to be given must be served to the counsel and not the client (Lincoln Gerard Inc. vs. NLRC, 07/23/90).

• Negligence of counsel binds the client (Maquilan vs. Maquilan, 524 SCRA 166), the only exception is when the negligence of counsel is so gross, reckless and inexcusable that the client is deprived of his day in court (Razon vs. People, 525 SCRA 284).

• Instances of admin determination where notice and hearing are not necessary.

1.Summary abatement of nuisance per se

2.Cancellation of passport by DFA

3.Summary proceedings of distraint & levy of property of delinquent taxpayer

4.Preventive suspension

5.Grant of provisional authority for increased rates, or to engage in particular line of business.

• Approval in TRB resolution of provisional rates of public utilities w/o hearing & by TRB Directors who did not attend personally the hearing (Padua vs. Ranada, 390 SCRA 666)

• Disciplining authority’s prerogative requires prior independent consideration of law and facts, and not simply rely on dispositive portion of PCAGC resolution; must contain factual finding and legal assessment (DOH Sec. vs. Camposano, 457 SCRA 440).

• Decision prepared by a SP Member is not decision of SP for lack of signatures of required majority; must conform with Sec. 66 of LGC (Malinao vs. Reyes, 255 SCRA 616)

MCQ: Which of the following has no original jurisdiction over administrative disciplinary cases involving public appointive officers and employees?a) Chief of office or bureau;b) Ombudsman;c) Civil Service Commission;d) Local Chief Executive

Right vs. self-incrimination

• Available in all kinds of proceedings

• Available only to natural persons and not to a juridical person.

• Reason for exclusion of juridical persons from the no self-incrimination rule: need for administrative bodies tasked by legislature to ensure compliance with law and public policy.

• The right vs. self-incrimination is not self-executory or automatically operational, it must be claimed at the appropriate time, or else it may be deemed waived (Nacu vs. CSC, 635 SCRA 766). PEZA employee Nacu (who was charged with dishonesty & grave misconduct for illegally collecting fees) did not invoke her right vs. self-incrimination at the time she was asked to provide samples of her signature. She is therefore deemed to have waived such right.

Doctrine of Exhaustion of Administrative Remedies

• Before a party can be allowed to seek judicial intervention, he is required to exhaust all means of administrative redress available under the law.

• 3 reasons for the doctrine *give admin body the chance to act and

correct errors * prevent unnecessary & premature resort

to courts * doctrine of separation of powers• Effect of failure to observe doctrine

Distinction bet. Doctrine of Primary Jurisdiction & Doctrine of Exhaustion of

Administrative Remedies (BQ)• Both deal with the proper relationships

between courts and administrative bodies.• Exhaustion applies where the claim is

originally cognizable in the first instance by the administrative body alone, while primary jurisdiction applies where the case is within the concurrent jurisdiction of the court & administrative agency but the case requires determination of some technical or factual matter xxx.

Cases• Applicable only to acts in the performance of a

quasi-judicial, not rule-making, function; issue of validity of IRR issued by National Government Center Administration Committee – that is it not in accord w/RA 9207 – is w/in court jurisdiction (Holy Spirit Homeowners Assn. vs.Defensor, 497 SCRA 582).

• MR must first be filed conformably w/Sec. 14, Rule Vll of NLRC Rules before special civil action for certiorari may be availed of (Sunshine Transport vs. NLRC, 254 SCRA 51).

• Sec. 8 of PD 705 as amended states that

(1) all actions and decisions of the BFD (now LMB) Director are subject to review by the DENR Secretary;

(2) the decisions of the DENR Secretary are appealable to the President; and

(3) courts cannot review the decisions of the DENR Secretary except through a special civil action for certiorari or prohibition (Task Force Sagip Kalikasan vs. Judge Paderanga, 06/19/08).

Cases• Increase in water rates by water district after conduct

of public hearing, subject to review and approval by LWUA. Where the rates presented in the hearing are not the same rates approved by LWUA, this matter shall be resolved by the NWRB. The NWRB Decision may be appealed to O.P. (Merida Water Dist. vs. Bacarro, 567 SCRA 204).

• Third party claim by Ongpin for recovery of possession & injunction before the court is an action questioning the validity of levy in the labor case vs. Green Mountain Farm. It is an incident of labor case & beyond jurisdiction of the RTC. The RTC is a co-equal body of the NLRC (Deltaventures Resources vs. Cabato, 327 SCRA 522).

• OSP is merely a component of OMB and may only act under the supervision & control of OMB (Ombudsman vs. Valera, 471 SCRA 717).

• The review as an act of supervision & control by DOJ Secretary over fiscals finds basis in this doctrine. He may thus affirm, nullify, reverse or modify their rulings.

• RSP has administrative supervision, not control, over CPs and PPs. In taking over the PI, Aurillo nullified the reso of the Inquest Pros. as approved by CP and deprived Rabi of his right to file MR and if denied to appeal to DOJ Sec. (RSP Aurillo vs. Rabi, 392 SCRA 604).

• Protests regarding CARP implementation are under exclusive jurisdiction of DAR Secretary. The petition for certiorari by Polo Coconut before CA asserting that the PARO gravely abused his discretion in placing Polo estate under the CARP will not prosper until all remedies under DARAB Rules have been exhausted (DAR vs. PCPI, 564 SCRA 80).

• Appeal the reassignment order of RM to NIA Administrator and to CSC. Remedy is not a complaint for prohibition & injunction before the court (Corsiga vs. Defensor & Ortizo, 391 SCRA 274).

• Appeal the monetary award (in exercise of visitorial & enforcement powers under Art. 128 of Labor Code) of the DOLE Reg. Director to the Labor Secretary (Laguna CATV vs. RD Maraan, 392 SCRA 226)

• Submission of dispute to Lupon ng Tagapamayapa for conciliation or amicable settlement under Sec. 408 LGC (Berba vs. Pablo, 474 SCRA 686)

• In Prov. of Siquijor vs. COA (12/04/09), the SC dismissed petitioner’s petition for certiorari to nullify the decision of COA Region Vll – as affirmed by COA Legal Office – disallowing the grant of P20T Xmas bonus, for failure to exhaust admin remedies. Petitioner having failed to pursue an appeal w/ the Commission Proper under COA Rules of Procedure, the disallowance as ruled by COA LAO-Local has become final & executory. Remedy of certiorari may be availed of only if there is no appeal xxx

MCQ: Admin remedies should be exhausted before resorting to court if:

a) A student was dismissed outright from school for showing pornographic photos;

b) the validity of a circular of the PRC providing for the closure of a nursing school if only 10% of its graduates passed the nursing examinations;

c) a civil service employee is questioning the validity of his transfer;*

d) Direct award by DPWH of an infrastructure project to a contractor without public bidding.

MCQ: The Bureau of Animal Industry under the DA and the Phil. Racing Commission under the OP claim to be entitled to the share of horseracing revenues that by law are allocated to the National Stud Farm (NSF). NSF was abolished by law but did not provide for a successor. The proper remedy for BAI is: a) file in court an action for recovery of money; b) file a petition with the Justice Department (DOJ) for appropriate resolution;* c) request the office of the President to issue an Executive Order awarding it to BAI; d) file with the RTC a Petition for Declaratory Relief to settle the conflict.

Cases where a prior MR is not necessary

a. the order is a patent nullity, as where the tribunal has no jurisdiction;

b. there is an urgent necessity for the resolution of the question & any further delay would prejudice the interests of Government or of the petitioner;

c. deprivation of due process & there is urgency for relief;

d. issue is purely legal;

e. public interest is involved.

MCQ: Which statement is not correct?

a) Failure to observe the doctrine of exhaustion of administrative remedies is a ground to dismiss the case for lack of cause of action;

b) Non-exhaustion of administrative remedies as a ground to dismiss the case may not be waived;*

c) Failure to observe the doctrine of primary jurisdiction is a ground to dismiss the case based on jurisdictional ground;

d) All of the above

Exceptions to the doctrine of exhaustion of admin remedies

• Whether respondent’s transfer to lower position of RD PAO, w/c was made without her consent, amounts to a removal without cause is a legal issue (Demaisip vs. Bacal, 12/06/2000)

• Whether the memo of the ARMM Governor ordering the reinstatement of petitioner who was already declared AWOL and dropped from the rolls was issued in excess of jurisdiction is a legal question (Arimao vs. Taher, 498 SCRA 75)

• the order transferring Dist. Supevisor Yap to Malapatan District came from the department secretary under the alter ego doctrine (Quisumbing vs. Gumban, 193 SCRA 523).

• Where the doctrine of qualified political agency applies (Binamira vs. Garucho).

• the land in question is private• Circumstances indicate urgency of judicial action• Unreasonable delay of official action xxx• there is nothing left to be done or there is no plain, adequate

and remedy except court action (Sta. Maria vs. Lopez, 31 SCRA 639)

• whether or not petitioner’s dismissal from the service is the proper penalty for first offense of disgraceful & immoral conduct is question of law (Castro vs. Gloria, 363 SCRA 423)

• poverty denied petitioner the services of a lawyer (Sabello vs. DECS, 12/26/89)

• prayer is for damages & not a reversal of PCST policies or demand to be allowed to take exams (Regino vs. Pangasinan Colleges of Science and Technology, 443 SCRA 56)

Doctrine of Qualified Political Agency

• In the absence of a constitutional proviso or statute to the contrary, official acts of a dep’t secretary are deemed acts of the President unless disapproved or reprobated by the latter. Except where the Const. or law requires that he acts in person, multifarious functions are performed by dep’t heads.

• Recognizes the existence of a single executive, all executive organizations are adjuncts of Exec. Department and the heads of these departments are agents of the Chief Executive.

• Authority of Exec. Secretary to reverse Decision of Director which has been affirmed by the Department Secretary.

• Doctrine is not applicable to the Office of the Ombudsman (Perez vs. Sandiganbayan, 503 SCRA 254).

• Special Order issued by DENR Secretary for delineation of boundary & resolution of territorial conflict is presumed the act of the President (Province of Camarines Norte vs. Province of Quezon & Mun. of Calauag, 367 SCRA 91).

• Department Secretaries as members of NPB cannot delegate their duties, like power to vote & approve board resolutions. Their personal judgment must be exercised. NPB Resolution terminating NPC employees on 1/31/03 is void (NPC Drivers & Mechanics Assn. vs. NPC, 503 SCRA 138). But he is not precluded from utilizing aid of subordinates as long as he makes final decision thru his personal judgment.

• Under Sec. 17, Art. Vll of Constitution, the President has control of all executive departments xxx. DENR Secretary’s Order transferring Regional Office from Cotabato City to Koronadal City is valid (DENR Sec. vs. DENR Employees, 409 SCRA 359).

Presidential Power of Control• President’s power over executive branch of government,

including all executive officers from Cabinet Sec. to lowliest clerk.

• Power to alter, modify or nullify or set aside what a subordinate had done…

• Reorganization of DOH under EO 102 of Pres. Estrada: not a usurpation of legislative power. EO 292 also gives continuing authority to Pres. to reorganize administrative structure of O.P. to achieve simplicity, economy & efficiency (Tondo Medical Center Employees Assn. vs. CA, 527 SCRA 748).

• The President has the power to reorganize the offices and agencies in the executive department in line with his constitutionally granted power of control and by virtue of a valid delegation of the legislative power to reorganize executive offices under existing statutes (Banda vs. Ermita, 618 SCRA 448).

• President can exercise executive power motu proprio and can supplant decision or act of the subordinate with his own. When the President ordered the development of housing project (Smokey Mountain) with reclamation work, making the DENR part of the implementing committee, the required authorization of DENR to reclaim land is deemed satisfied. The ultimate power over alienable and disposable public lands is reposed in the President and not the DENR Secretary. To still require DENR authorization on Smokey Mountain would be a derogation of Pres.’s powers as head of Exec. Branch (Chavez vs. NHA, 530 SCRA 241).

• Distinguishing power of control from power of supervision: the latter is the power of mere oversight over LGUs; checking whether LGU or its officers perform their duties as provided by law and whether the rules are followed. He cannot lay down the rules for the doing of the act. If rules are not observed, the superior may order the work done or redone to conform to prescribed rules but he cannot prescribe his own manner for the doing of the act.

(Bito-onon vs. Fernandez, 350 SCRA 732)

• The creation of the Phil. Truth Commission (PTC) is not justified by the Pres.’s power of control. The power of control (to alter, modify or nullify) is different from power to create public offices – the former is inherent in the Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully execute the laws. PTC’s creation is justified under Sec. 17, Art. Vll imposing on President the duty to ensure that laws are faithfully executed (Biraogo vs. PTC, 637 SCRA 78). Note: PTC is not borne out of restructuring of the O.P. since PTC is not part of the O.P. structure prior to EO No. 1.

MCQ: Which agency is under the general supervision of the President?

a) The Armed Forces of the Philippines (AFP) under the DND

b) The Philippine National Police (PNP) under the DILG

c) The Philippine Charity Sweepstakes Office (PCSO)

d) The Autonomous Region for Muslim Mindanao (ARMM)

Review of Admin Decisions• General rule: Factual findings are not subject to

judicial review & must be accorded not only utmost respect but finality as long as decisions are supported xxx

• Exceptions:

~misappreciation of facts; not supported by substantial evidence; when so warranted, there may be judicial review; findings are vitiated by fraud, imposition or collusion; procedure is irregular; palpable or serious errors have been committed; grave abuse of discretion, arbitrarines or capriciousness is manifest

Cases• Factual finding of DARAB w/c relied on

certification by MARO that petitioner is a tenant is not conclusive on courts. Tenacy is not purely a factual relationship but also a legal relationship (Bautista vs. Araneta, 326 SCRA 234).

• Classification of public land is a function of the Director of LMB and his decision when approved by DENR Sec. as to question of fact is conclusive & not subject to judicial review (Rep. vs. Imperial, 303 SCRA 127)

• Evidentiary or factual matters are not proper grounds in a petition for certiorari under Rule 65. Such petition will prosper only if there is a showing of grave abuse of discretion or an act w/o or in excess of jurisdiction of the administrative tribunal.

• All errors or decisions of administrative bodies involving questions of law are subject to judicial review under Sec. 5 (2e), Art. Vlll of Constitution.

• Mixed questions of facts and law are subject to judicial review (Doctrine of Assimilation of Facts)

Doctrine of Assimilation of Facts

• When a finding of fact is so intimately involved and dependent upon a question of law, the court will, in order to resolve the question of law, examine the factual setting including the evidence adduced. The more important issue, which is law, assimilates the facts.

Ex. Tenancy involves both factual and legal questions.

• The PEA decision to dismiss petitioners from the service, upon recommendation of PAGC as approved by the President after due proceedings, should have been appealed to the CSC under EO 292. From CSC, it can be elevated to the CA via a petition for review under Rule 43. From there, it can be appealed to the SC thru a petition for review on certiorari under Rule 45 (Lacson vs. PEA, PAGC, 30 May 2011). Here, petitioners chose the wrong remedy by appealing their dismissal by the PEA to the CA instead of CSC. As their dismissal has become final & executory, S.C. no longer has power to review & act.

• Difference bet. Rule 45 (Petition for Review on Certiorari) and Rule 65 petition (Petition for Certiorari): A Rule 65 petition is an original action that dwells on jurisdictional errors of whether a lower tribunal acted without or in excess of its jurisdiction or with grave abuse of discretion. A Rule 45 petition is a mode of appeal which centers on the review on the merits of a judgment, final order or award rendered by a lower court involving purely questions of law.

Immunities• Admin bodies cannot grant criminal and civil

immunities to persons unless the law explicitly confers such power.

• PCGG may grant criminal (under EO 14A)

and civil (under Art. 2028 CC) immunities• Apply Art 2028, Civil Code: amicable

settlement in civil cases applicable to PCGG cases

• OMB under Sec. 17 of RA 6770

Three-fold Responsibility• Remedies may be invoked separately, alternately,

simultaneously or successively• Rule: Administrative cases are independent from

criminal cases

Exception: Law expressly provides for prior final administrative determination. Example – In prosecution of ULP under Labor Code, no criminal prosecution for ULP can be filed w/o a final judgment in a previous administrative proceeding.

• The dismissal by the CP of petitioner’s criminal complaint vs. Fil-Estate for violation of PD 957 in failing to construct & deliver to petitioner the condo unit – on the view that an administrative finding of violation must first be obtained before resort to criminal prosecution – is wrong. Nothing in PD 957 expressly requires prior administrative finding. Where the law is silent on this matter, the fundamental rule that the administrative case is independent from criminal action fully applies (Chua vs. Ang, 598 SCRA 232).

• Hierarchy of evidentiary values: Proof of guilt beyond reasonable doubt is the highest level, followed by clear & convincing evidence, preponderance of evidence and substantial evidence, in that order (ERB vs. CA, 357 SCRA 30).

• A criminal prosecution will not constitute a prejudicial question even if the same facts are attendant in the admin proceedings (Gatchalian Talents Pool vs. Naldoza, 315 SCRA 406)

• Administrative offenses do not prescribe (Floria vs. Sunga , 368 SCRA 551)

• Sec. 20 of RA 6770 refers not to prescription but the discretion given to the OMB.

• Desistance will not automatically result to dismissal of admin case. Complainant is a mere witness xxxThe aim in administrative proceedings is not the punishment of officer but improvement of public service & the preservation of public’s faith and confidence.

• Rule on anonymous complaints• Doctrine of Forgiveness or Condonation• Doctrine cannot benefit appointive officer seeking

elective office (Omb vs. Maricar Torres, 566 SCRA 365)

Aggrieved Party who may appeal the administrative decision

• Sec.39(a), PD 807: Appeals, where allowable, shall be made by the party adversely affected by the decision x x x.

• The CSC as the party adversely affected by the CA ruling, which seriously prejudices the civil service system, may appeal the CA decision to the S.C. (CSC vs. Dacoycoy, 306 SCRA 426).

• A party may elevate a decision of CSC before the CA thru petition for review under Rule 43 of Revised Rules of Court.

PNP• Sec. 6, Art. XVl Const.: The State shall establish & maintain

one police force xxx• Authority of the local chief executive is one of operational

supervision and control, i.e. power to direct the employment & deployment of PNP elements to ensure public safety and effective maintenance of peace & order, except 30 days immediately preceding & following any election (Sec.62,RA 8551)

• Relationship bet. PNP and AFP: PNP shall, thru info gathering & performance of its ordinary police functions, support the AFP on matters involving the suppression of insurgency (and other serious threats to national security), except where the President calls on the PNP to support the AFP in combat operations.

• Criminal cases involving PNP members are w/in exclusive jurisdiction of regular courts. [Note: Courts-martial as applied to AFP members are not courts within Phil. judicial system. They pertain to the executive department & are instrumentalities of the executive power.]

• The local chief executive has the limited power of selecting one from among the list of five eligibles (three in province) to be appointed chief of police of the city (Andaya vs. RTC, 319 SCRA 696).

OSG (PD 478; Admin Code)• Gen. Rule: OSG is the lawyer of government,

any of its agencies and officials in any litigation xxx

~Actions in the name of the RP or its instrumentality, if not initiated by the Solicitor General, will be summarily dismissed.

• Exceptions: 1. When the government office is adversely

affected by contrary stand of OSG (Orbos vs. CSC, 12 Sept. 1990)

2. Solicitor General deputizes legal officers xxx (Sec. 35, Ch. 123. Bk lV, EO 292)

• Gen. Rule: Solicitor General can represent a public official in all civil, criminal and special proceedings when such proceedings arise from the latter’s acts in his official capacity.

• Exception: Such official or agent is being charged criminally or being sued civilly for damages arising from a felony. The state can never be the author of a wrongful act or be made liable for any pecuniary liability a public official may be held to account in a civil case for damages.

Ombudsman Constitutional Ombudsman Constitutional MandateMandate

• As protector of the people, OMB has the As protector of the people, OMB has the power, function and duty to power, function and duty to act promptly act promptly on complaints filed in any form or manner on complaints filed in any form or manner against public officials and to investigate against public officials and to investigate any act or omission of any public official any act or omission of any public official when such act or omission appears to be when such act or omission appears to be illegal, unjust, improper or inefficient.illegal, unjust, improper or inefficient.

Need for Prompt ActionNeed for Prompt Action• Delay of 3 years in conduct of PI violates rights of Delay of 3 years in conduct of PI violates rights of

accused to due process & speedy disposition of accused to due process & speedy disposition of cases (Tatad vs. Sandiganbayan, 159 SCRA 70)cases (Tatad vs. Sandiganbayan, 159 SCRA 70)

• Right to speedy disposition extends to all parties Right to speedy disposition extends to all parties in all cases, including civil and administrative. in all cases, including civil and administrative. That he was charged by FFIB in 1997, while act That he was charged by FFIB in 1997, while act occurred in 1992 & decision suspending him for 6 occurred in 1992 & decision suspending him for 6 mos. for neglect of duty was issued in 1999 is not mos. for neglect of duty was issued in 1999 is not necessarily a violation of his right (Ombudsman necessarily a violation of his right (Ombudsman vs. Jurado, 561 SCRA 135). vs. Jurado, 561 SCRA 135).

Cases on OMB JurisdictionCases on OMB Jurisdiction

• Jurisdiction of OMB encompasses all kinds of Jurisdiction of OMB encompasses all kinds of malfeasance, misfeasance xxx (Deloso vs. malfeasance, misfeasance xxx (Deloso vs. Domingo, 191 SCRA 545)Domingo, 191 SCRA 545)

• OMB authority is shared or concurrent w/similarly OMB authority is shared or concurrent w/similarly authorized agencies. In exercise of its primary authorized agencies. In exercise of its primary jurisdiction, it may take over investigation of cases jurisdiction, it may take over investigation of cases cognizable by the Sandiganbayan at any stage cognizable by the Sandiganbayan at any stage xxx (Sanchez vs. Demetriou, 227 SCRA 637)xxx (Sanchez vs. Demetriou, 227 SCRA 637)

• Money claim is not within OMB jurisdiction Money claim is not within OMB jurisdiction (Orcullo vs. Gervacio, 314 SCRA 452)(Orcullo vs. Gervacio, 314 SCRA 452)

OMB-DOJ MOA dated 03/29/12

• The OMB and the prosecution offices of the DOJ shall have concurrent jurisdiction over complaints for crimes involving public officers and employees falling outside the exclusive jurisdiction of the Sandiganbayan: provided that the office where such a complaint is filed for PI shall acquire jurisdiction over the complaint to the exclusion of the other.

Subpoena Power of OMBSubpoena Power of OMBRequest any gov’t agency for assistance & Request any gov’t agency for assistance &

information in discharge of its duties, & to information in discharge of its duties, & to examine pertinent records [Sec.15(5)] examine pertinent records [Sec.15(5)]

Administer oaths, issue subpoena and subpoena Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any duces tecum, and take testimony in any investigation or inquiry, including the power to investigation or inquiry, including the power to examine and have access to bank accounts and examine and have access to bank accounts and records [Sec. 15(8), RA 6770].records [Sec. 15(8), RA 6770].

OMB order for inspection of Union Bank OMB order for inspection of Union Bank documents is an invasion of privacy violative of documents is an invasion of privacy violative of RA 1405 (Marquez vs. Desierto, 359 SCRA 773). RA 1405 (Marquez vs. Desierto, 359 SCRA 773).

Who are not subject to OMB Who are not subject to OMB Disciplinary Authority?Disciplinary Authority?

• Impeachable Officials (Sec. 2, Art. X1)Impeachable Officials (Sec. 2, Art. X1) * In re: Raul M. Gonzales, 160 SCRA 771* In re: Raul M. Gonzales, 160 SCRA 771• Members of Congress (Sec. 16 par.3, Art. Vl)Members of Congress (Sec. 16 par.3, Art. Vl)• Judiciary (admin supervision Sec. 6, Art.Vlll)Judiciary (admin supervision Sec. 6, Art.Vlll) * Maceda vs. Vasquez, 221 SCRA 46* Maceda vs. Vasquez, 221 SCRA 46 * Fuentes vs. Ombudsman, 368 SCRA 36* Fuentes vs. Ombudsman, 368 SCRA 36 * Judge Garcia vs. Miro, 582 SCRA 127 (2009) * Judge Garcia vs. Miro, 582 SCRA 127 (2009)

[Reckless Imprudence Resulting to Homicide][Reckless Imprudence Resulting to Homicide]

Cases on Preventive SuspensionCases on Preventive Suspension

• Period of preventive suspension cannot be credited to Period of preventive suspension cannot be credited to whatever penalty that may be meted out (Yabut whatever penalty that may be meted out (Yabut vs.OMB, 233 SCRA 311)vs.OMB, 233 SCRA 311)

• The OMB order for preventive suspension was validly The OMB order for preventive suspension was validly issued even without a full-blown hearing & formal issued even without a full-blown hearing & formal presentation of evidence by the parties (Buenaseda presentation of evidence by the parties (Buenaseda vs. Flavier, 226 SCRA 646)vs. Flavier, 226 SCRA 646)

• Power to preventively suspend is granted only to the Power to preventively suspend is granted only to the Ombudsman & Deputy Ombudsmen. Those Ombudsman & Deputy Ombudsmen. Those occupying the same rank do not necessarily have the occupying the same rank do not necessarily have the same powers (OMB vs. Valera, 471 SCRA 718)same powers (OMB vs. Valera, 471 SCRA 718)

Finality and Execution of DecisionFinality and Execution of Decision• Decision is final, executory and unappealable Decision is final, executory and unappealable

if respondent is acquitted, or penalty is if respondent is acquitted, or penalty is reprimand, suspension of not more than one reprimand, suspension of not more than one month, or fine equivalent to one month salary.month, or fine equivalent to one month salary.

*The right to appeal is not a natural right nor *The right to appeal is not a natural right nor part of due process (Alba vs. Nitorreda, 254 part of due process (Alba vs. Nitorreda, 254 SCRA 753)SCRA 753)

• All other cases, appeal to the Court of All other cases, appeal to the Court of Appeals on verified petition for review within Appeals on verified petition for review within 15 days under Rule 43.15 days under Rule 43.

• A CA petition for review under Rule 43 is not allowed A CA petition for review under Rule 43 is not allowed in an exoneration situation under RA 6770 and the in an exoneration situation under RA 6770 and the Ombudsman Rules. The remedy from OMB decision Ombudsman Rules. The remedy from OMB decision exonerating respondent in the admin case vs. him, exonerating respondent in the admin case vs. him, despite the CSC finding that the reassignment order despite the CSC finding that the reassignment order issued by Reyes was in bad faith & constitutes issued by Reyes was in bad faith & constitutes constructive dismissal, is a petition for certiorari under constructive dismissal, is a petition for certiorari under Rule 65. Nonetheless, SC here applied liberality and Rule 65. Nonetheless, SC here applied liberality and treated the CA petition of respondents under Rule 43 treated the CA petition of respondents under Rule 43 as having the effect of a Rule 65 petition. (LWUA as having the effect of a Rule 65 petition. (LWUA Admtr. Reyes vs. Belisario, 596 SCRA 31)Admtr. Reyes vs. Belisario, 596 SCRA 31)

Effect of Appeal on DecisionEffect of Appeal on Decision

• An appeal shall not stop the decision from being An appeal shall not stop the decision from being executory. In case penalty is suspension or executory. In case penalty is suspension or removal and respondent wins the appeal, he removal and respondent wins the appeal, he shall be considered as being under preventive shall be considered as being under preventive suspension and he shall be paid the salary suspension and he shall be paid the salary (OMB Administrative Order No. 17 dated (OMB Administrative Order No. 17 dated 09/07/03). 09/07/03).

• A decision of the Ombudsman shall be executed A decision of the Ombudsman shall be executed as a matter of course. Failure or refusal to as a matter of course. Failure or refusal to comply with the OMB Order shall be a ground comply with the OMB Order shall be a ground for disciplinary action.for disciplinary action.

Case• The decision of the OMB (1-yr. suspension anent

resp. City Treasurer’s shortages) is immediately executory pending appeal & may not be stayed by the filing of the appeal or issuance of an injunctive writ. The proviso in the OMB Rules of Procedure (AO 17) that a decision is immediately executory is a special rule that prevails over the proviso of the Rules of Court (Sec. 12 Rule 43) which provides for the stay of the decision pending appeal (OMB vs. Samaniego, 10/15/10).

Cases on Preliminary InvestigationCases on Preliminary Investigation• Ombudsman cannot be compelled to issue an order Ombudsman cannot be compelled to issue an order

for production of documents if in his judgment such for production of documents if in his judgment such are not necessary to establish the guilt or innocence are not necessary to establish the guilt or innocence of accused (Mamburao vs. OMB, 344 SCRA 818).of accused (Mamburao vs. OMB, 344 SCRA 818).

• A COA Audit Report is not equivalent to the affidavit A COA Audit Report is not equivalent to the affidavit required under AO 7 (Duterte vs. Sandiganbayan, required under AO 7 (Duterte vs. Sandiganbayan, 289 SCRA 721)289 SCRA 721)

• The Prosecutor who conducted the investigation is The Prosecutor who conducted the investigation is only a nominal complainant. Real complainant is the only a nominal complainant. Real complainant is the state (Garcia vs. Primo, 397 SCRA 41)state (Garcia vs. Primo, 397 SCRA 41)

Effect on OMB re COA’s Non-Finding Effect on OMB re COA’s Non-Finding of Liabilityof Liability

• COA’s approval of a government official’s COA’s approval of a government official’s disbursements only relates to the administrative disbursements only relates to the administrative aspect of the matter of his accountability but it aspect of the matter of his accountability but it does not foreclose the Ombudsman’s authority does not foreclose the Ombudsman’s authority to investigate and determine whether there to investigate and determine whether there is a crime to be prosecuted for which such is a crime to be prosecuted for which such official is answerable. While COA may regard official is answerable. While COA may regard the official to have substantially complied with the official to have substantially complied with it’s accounting rules, this fact is not sufficient to it’s accounting rules, this fact is not sufficient to dismiss the criminal case. (dismiss the criminal case. (Aguinaldo vs. Aguinaldo vs. SandiganbayanSandiganbayan, 265 SCRA 121), 265 SCRA 121)

• The fact that petitioners’ accounts and vouchers had passed in audit is no ground to enjoin the fiscal from conducting PI to determine their criminal liability for malversation. A finding of probable cause does not derive its veracity from the COA findings but from the OMB’s independent determination (Dimayuga vs. OMB, 20 July 2006).

• The Rules of Procedure of OMB (Sec. 7 Rule ll) sanction the immediate filing of an information in the proper court upon finding of probable cause, even during the pendency of a MR.

• The mere filing of a petition for certiorari under Rule 65 does not by itself merit a suspension of the proceedings before the Sandiganbayan, unless a TRO or writ of preliminary injunction has been issued against the Sandiganbayan (Ramiscal, Jr. vs. Sandiganbayan, 630 SCRA 506).

Court of Appeals; No Authority Court of Appeals; No Authority Over OMB Resolutions in Criminal Over OMB Resolutions in Criminal

Cases. Cases.

• The CA has jurisdiction over orders, directives The CA has jurisdiction over orders, directives and decisions of the OMB in administrative and decisions of the OMB in administrative disciplinary cases only – it cannot review the disciplinary cases only – it cannot review the orders or decisions of the Ombudsman in orders or decisions of the Ombudsman in criminal or non-administrative cases. Since the criminal or non-administrative cases. Since the CA has no jurisdiction over decisions of the CA has no jurisdiction over decisions of the Ombudsman in criminal cases, its ruling Ombudsman in criminal cases, its ruling directing the withdrawal of the criminal case directing the withdrawal of the criminal case filed by the Ombudsman before the RTC filed by the Ombudsman before the RTC against respondent POEA employee Fung is against respondent POEA employee Fung is void (Golangco vs. Fung, 504 SCRA 321). void (Golangco vs. Fung, 504 SCRA 321).

• The Ombudsman is without authority to initiate forfeiture proceedings for recovery of ill-gotten or unexplained wealth amassed prior to 2/25/86. However, the Ombudsman has authority to investigate cases for forfeiture or recovery of such ill-gotten wealth amassed even before said date pursuant to his general investigatory power under Sec. 15(1) of RA 6770

(Romualdez vs. Sandiganbayan, 625 SCRA 13)

End

Good Luck!