Garcia v.

Mojica | ema
September 10, 1999
MAYOR ALVIN B. GARCIA, petitioner, vs.
HON. ARTURO C. MOJICA, in his capacity as DEPUTY OMBUDSMAN FOR THE VISAYAS, VIRGINIA
PALANCA-SANTIAGO, in her capacity as DIRECTOR, OFFICE OF THE OMBUDSMAN (VISAYAS), ALAN
FRANCISCO S. GARCIANO, in his capacity as GRAFT INVESTIGATION OFFICER I, OFFICE OF THE
OMBUDSMAN (VISAYAS), and JESUS RODRIGO T. TAGAAN, respondents.
QUISUMBING, J.:
SUMMARY: Cebu City Mayor Garcia signed an alleged midnight deal (4 days prior to the May 1998 election) with FF
Zuellig for the supply of asphalt to the city government. Garcia was re-elected mayor. Newspaper reports on the
matter surfaced, prompting the Deputy Ombudsman for Visayas to investigate. The OMB-VIS, after conducting an
investigation, recommended the filing of administrative and criminal charges against Garcia. A complaint against
Garcia was filed before the Ombudsman, and the OMB-VIS preventively suspended Garcia for 6 months starting
June 1999. Garcia assailed this before the SC, claiming that the period was too long; that the investigation and the
resulting suspension violated the LGC [which provided for a minimum period of 60 days]; and that his liability (if any)
for the asphalt deal had already been condoned by virtue of his reelection. SC upheld the Ombudsmans authority to
investigate Garcia, but found that the imposition of 6 months preventive suspension was improper, considering that
the case against Garcia [see findings below] did not constitute the strong evidence required by Ombudsman Law
24; and that the period for which Garcia was already suspended served the purpose of preventing him from hiding
evidence and influencing prospective witnesses. SC held that there was no violation of the LGC since Garcia was
being investigated under the Ombudsman Law, and the two laws govern differently. It has been ruled in Hagad v.
Gozo-Dadole that the LGC did not divest the Ombudsman of investigatory authority over local officials; and that the
LGC and the Ombudsman are not irreconcilable on this point. While there is a distinction between preventive
suspension periods under LGC and the Ombudsman Law, SC held that such distinction was not decisive in Garcias
case. Finally, SC held that Garcia could no longer be held administratively liable for the asphalt deal, because it was
signed and perfected during his previous term. That the contract was to be effective in Garcias current term is of no
moment, as was held previously in Salalima v. Guingona.
DOCTRINE: The power to investigate is distinct from the power to impose preventive suspension on an erring public
officer. The disciplinary authority of the Ombudsman extends to local government officials. The phrase under
his authority in 24 of the Ombudsman Law has been interpreted to mean that the Ombudsman can preventively
suspend all officials under investigation by his office, regardless of the branch of government in which they are
employed, excepting those removable by impeachment, members of Congress and the Judiciary.
The reason for the shorter period of preventive suspension imposable under the LGC is the possibility of
political color tainting the exercise of the power to suspend local officials, leading to its abuse by the mayor,
governor, or Presidents office. In contrast the Ombudsman, considering the constitutional origin of his
Office, always ought to be insulated from the vagaries of politics.
The lawful purpose of preventive suspension is to prevent erring officials from hiding and destroying needed
documents, or harassing and preventing witnesses who wish to appear against them. There could be preventive
suspension even before the charges against the official are heard, or before the official is given an opportunity to
prove his innocence. Preventive suspension is merely a preliminary step in an administrative investigation and is not
in any way the final determination of the guilt of the official concerned.
RE: Condonation: A elective local official who is reelected cannot be held administratively liable for acts committed
during the previous term, even if such acts were to be effective only during the current term. What matters is that the
act was committed or perfected during the previous term and the official has been subsequently reelected. The only
conclusive determining factor as regards the peoples thinking on the character of an elective official is an election.
That the people voted for an official with knowledge of his character is presumed, precisely to eliminate the need to
determine, in factual terms, the extent of this knowledge. SC decisions do not distinguish the precise timing or period
when the misconduct was committed, reckoned from the date of the officials reelection, except that it must be prior to
said date.
NATURE: Petition for certiorari and prohibition with prayer for TRO and/or writ of preliminary injunction. Complaint
before the Ombudsman
FACTS

May 7, 1998 Cebu City Mayor Alvin GARCIA, acting in such capacity, signed an asphalt supply contract
with F.E. ZUELLIG.
o Contract covers supply of asphalt to Cebu City for 1998-2001, to commence on September 1998
upon scheduled date of first delivery.

May 11, 1998 Philippine general election. Garcia won another term as Cebu City mayor.

March 1999 News reports on the alleged anomalous purchase of asphalt by Cebu City (through the
contract signed by Garcia) surfaced. This prompted the Ombudsman for Visayas (OMB-VIS) to investigate
the matter.

TAGAAN RECOMMENDATION
o Special Prosecution Officer Jesus Rodrigo TAGAAN was tasked to conduct the inquiry
o FINDINGS/RECOMMENDATION: Inquiry be upgraded to criminal and administrative cases against
Garcia and other involved officials.
o Deputy Ombudsman for Visayas Arturo MOJICA approved Tagaans recommendation.

June 22, 1999 Graft Investigation Officer Allan Francisco GARCIANO recommended that Garcia and some
other persons be put under preventive suspension.

June 24, 1999 Complaint-affidavit against Garcia was filed

June 25, 1999 Ombudsman issued the assailed preventive suspension order suspending Garcia for 6
months. Garcia filed MR, but it was denied. Hence, this recourse to the SC.

GARCIAS ARGUMENTS
o Ombudsman acted without jurisdiction in issuing the preventive suspension order, considering that
the alleged offense was committed during Garcias previous term; and his reelection is deemed a
condonation of such alleged offense
o Preventive suspension violated LGC 63 which allows suspension only after the issues have been
joined; and should only last for not more than 60 days
o Preventive suspension violated the Ombudsman Act
o Preventive suspension committed GADALEJ in concluding that the evidence of guilt against Garcia
was strong
[PROCEDURAL]

July 19, 1999 SC issued a status quo order. On that same day, Garcia issued a memo to the employees of
the Office of the City Mayor that he was assuming the post of mayor effective immediately.

Jul. 23, 1999 Ombudsman filed a motion seeking clarification of the status quo referred to in the order.
o Ombudsman: Status quo is that where Garcia is suspended and the vice-mayor is the acting
mayor
o Garcia: Status quo is the last actual peaceable uncontested status prior to the controversy, i.e.,
when he was not yet suspended, because the controversy relates to his suspension
o SC: Garcias definition is correct [citing Regalado]. Status quo orders are merely intended to
maintain the last, actual, peaceable and uncontested state of things which preceded the
controversy. This [is] resorted to when the projected proceedings in the case made the
conservation of the status quo desirable or essential, but the affected party neither sought such
relief or the allegations in his pleading did not sufficiently make out a case for a temporary
restraining order. The status quo order [is] thus issued motu proprio on equitable considerations.
[U]nlike a temporary restraining order or a preliminary injunction, a status quo order is more in the
nature of a cease and desist order, since it neither directs the doing or undoing of acts as in the
case of prohibitory or mandatory injunctive relief. The further distinction is provided by the present
amendment in the sense that, unlike the amended rule on restraining orders, a status quo order
does not require the posting of a bond.
ISSUES (HELD)
1) W/N the preventive suspension of Garcia is based on strong evidence as required by law (NO)
2) W/N OMB-VIS committed grave abuse of discretion in investigating Garcia and ordering his preventive suspension
for 6 months (YES)
3) What law should apply to the investigation the LGC (RA 7160) or the Ombudsman Law (RA 6770)? (Both laws
applicable. See Ratio)
4) What is the effect of Garcias reelection on the investigation of acts done before his reelection? (DEEMED
CONDONED)
RATIO
NOTE: I put the strength of evidence and abuse of discretion issues first because it seemed to me that the resolution
of the other 2 issues hinged upon the findings there.
1) PURPOSE OF PREVENTIVE SUSPENSION & CIRCUMSTANCES OF GARCIAS SUSPENSION MERIT THE
CONCLUSION THAT THE 6-MONTH SUSPENSION IS UNWARRANTED

Preventive suspension under 24, RA 6770 may be imposed when, among other factors, the evidence of
guilt is strong. The period for which an official may be preventively suspended must not exceed 6 months.

The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension rests
with the Ombudsman.

The discretion as regards the period of such suspension also belongs to the Ombudsman, except that he
cannot extend the period of suspension beyond that provided by law.

SC: The strength of the evidence to warrant a suspension and the propriety of the length or period of
suspension imposed on are issues properly raised in this petition for certiorari and prohibition. These
equitable remedies under ROC 65 precisely exist to provide prompt relief where an officer exercising
judicial or quasi-judicial functions has acted...with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of
law.

CAB: Garcias investigation was prompted by newspaper [baka tabloid lang] reports alleging that Garcia
entered into anomalous supply contracts in behalf of the City.

His preventive suspension was based on the following:

o (1) the contract for supply of asphalt to Cebu City was designed to favor F.E. Zuellig
o (2) the amount quoted in the contract was too expensive compared to the amount for which asphalt
may be bought from local suppliers such as Shell and Petron, particularly considering that the
amount was fixed in dollars and was payable in pesos, thus exposing the city government to the
risks attendant to a fluctuating exchange rate
o (3) the interest of the city under the contract is not protected by adequate security.
o These findings were based on the contract itself and on letters from Bitumex and Credit Lyonnais.
There were also letters from Shell and Petron that were replies to the OMB-VIS inquiry on whether
or not they could supply Cebu City with asphalt and on what terms.

OMB, through SolGen: The documents mentioned in their comment (such as purchase orders, purchase
requests, and disbursement vouchers) that show Garcias guilt were obtained after he had been suspended.
Even if an afterthought, they still strengthen the evidence against Garcia.

SC: If the purpose of the preventive suspension was to enable the OMB-VIS to gather documents without
intervention from Garcia, this purpose was already achieved during Garcias nearly month-long suspension
from June 25 to July 19, 1999. Granting that now the evidence against Garcia is already strong, even
without conceding that initially it was weak, it is clear that the maximum 6-month period is excessive and
definitely longer than necessary for the Ombudsman to make its legitimate case against petitioner.

The period during which Garcia was already preventively suspended has been sufficient for the lawful
purpose of preventing him from hiding and destroying needed documents, or harassing and preventing
witnesses who wish to appear against him.
2) OMB-VIS DID NOT COMMIT GAD IN INVESTIGATING GARCIA; ON THE OTHER HAND, THE SUSPENSION,
BEING EXCESSIVE, WAS COMMITTED WITH GAD

The authority of the Ombudsman to conduct administrative investigations is vested by no less than the
Constitution itself.

Under the Basic Law, the Ombudsman has the power to investigate on its own, or on complaint by any
person, any act or omission of any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient.

Garcia is an elective local official accused of grave misconduct and dishonesty. That the Ombudsman may
conduct an administrative investigation into the acts complained of, appears clear from RA 6770 19 and
21:
o The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which:
(1) Are contrary to law or regulation;
(2) Are unreasonable, unfair, oppressive or discriminatory;
(3) Are inconsistent with the general course of an agencys functions, though in accordance with
law;
(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;
(5) Are in the exercise of discretionary powers but for an improper purpose; or
(6) Are otherwise irregular, immoral or devoid of justification.
o SEC. 21. Officials Subject To Disciplinary Authority; Exceptions. The Office of the Ombudsman
shall have disciplinary authority over all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members of the Cabinet, local
government, GOCCs and their subsidiaries, except over officials who may be removed only by
impeachment or over Members of Congress, and the Judiciary.

However, the question of whether or not the Ombudsman may conduct an investigation over a particular act
or omission is different from the question of whether or not an official, after investigation, may be held
administratively liable. In the same vein, the power to investigate is distinct from the power to impose
preventive suspension on an erring public officer.

241 of the Ombudsman Law expressly grants the Ombudsman the power of preventive suspension over
officials under his authority. This power is available not only to the Ombudsman but also to the Deputy
Ombudsman.

The phrase under his authority has been interpreted to mean that the Ombudsman can preventively
suspend all officials under investigation by his office, regardless of the branch of government in which they
are employed, excepting those removable by impeachment, members of Congress and the Judiciary.

Since the authority of the OMB-VIS to impose preventive suspension - to prevent officials from using their
offices to intimidate or influence witnesses or to tamper with records that might be vital to the prosecution of
the case against them has been clearly established, the actual question here is: Given the purpose of
preventive suspension and the circumstances of this case, did the Deputy Ombudsman commit a grave
abuse of discretion when he set the period of preventive suspension at six months?

SC: [see Ratio 1.] Given the purpose of preventive suspension and the circumstances of Garcias case, it is
held that the OMB-VIS abused its discretion in setting the suspension period at 6 months.

Garcia: OMB-VIS conducted a full-blown administrative investigation without him being given 72 hours to
answer the charges against him, in violation of 26(2) of the Ombudsman Law. Before an inquiry may be
converted into a full-blown administrative investigation, the official concerned must be given 72 hours to
answer the charges against him.

SC: While Garcia was indeed not given 72 hours to answer the charges, this does not invalidate his
preventive suspension. A preventive suspension order may be issued even before the charges against the
official concerned are heard.

Moreover, OMB-VIS gave Garcia 10 days to submit his counter-affidavit to the complaint filed by Tagaan.
This 10-day period is in keeping with Section 5(a) of the Rules of Procedure of the Office of the
Ombudsman2.
3) OMBUDSMAN LAW AND LGC PROVISIONS ON PREVENTIVE SUSPENSION ARE REPUGNANT BUT
GOVERN DIFFERENTLY; DISTINCTION IS NOT DECISIVE HERE

While the SC found that Garcias 6-month suspension was excessive for the purpose it was intended to
serve, this does not mean that the LGC has been violated. Under the LGC, preventive suspension may only
be imposed after the issues are joined, and only for a maximum period of sixty days.

CAB: Garcia was suspended without having had the chance to refute first the charges against him, and for
the maximum period of 6 months provided by the Ombudsman Law.

But as OMB-VIS argues, administrative complaints commenced under the Ombudsman Law are distinct
from those initiated under the LGC.

OMB-VIS points out that the shorter period of suspension under the LGC is intended to limit the period of
suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by
partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive
suspension, is not likely to be similarly motivated because it is a constitutional body. The distinction is
valid but not decisive, in our view, of whether there has been grave abuse of discretion in a specific
case of preventive suspension.

It appears from the LGC deliberations that Sen. Pimentel had in mind the Ganzon case, where a series of
preventive suspensions was imposed on Mayor Ganzon of Iloilo. The limitation on preventive suspension
was intended to prevent such cases.

OMB-VIS may be correct in pointing out the reason for the shorter period of preventive suspension
imposable under the LGC. Political color could taint the exercise of the power to suspend local officials by
the mayor, governor, or Presidents office. In contrast the Ombudsman, considering the constitutional origin
of his Office, always ought to be insulated from the vagaries of politics, as OMB-VIS would have us believe.

Hagad v. Gozo-Dadole, on the matter of whether or not the Ombudsman has been stripped of his power to
investigate local elective officials by virtue of the LGC: Indeed, there is nothing in the [LGC] to indicate that
it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two
statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to
only uphold one and strike down the other.
1

SEC. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an
investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or
grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay
in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay,
except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in
which case the period of such delay shall not be counted in computing the period of suspension herein provided.
2

Sec. 5. Administrative adjudication; How conducted. (a) If the complaint is not dismissed for any of the causes enumerated in Section 20 of
Republic Act No. 6770, the respondent shall be furnished with copy of the affidavits and other evidences submitted by the complainant, and shall be
ordered to file his counter-affidavits and other evidences in support of his defense, within ten (10) days from receipt thereof, together with proof of
service of the same on the complainant who may file reply affidavits within ten (10) days from receipt of the counter-affidavits of the respondent.

It was also argued in Hagad that the 6-month preventive suspension under the Ombudsman Law is much
too repugnant to the 60-day period that may be imposed under the Local Government Code. But per J.
Vitug, the two provisions govern differently.

Garcia: Hagad did not settle the question of whether a local elective official may be preventively suspended
even before the issues could be joined.

SC: Indeed it did not, but it has been held in other cases that there could be preventive suspension even
before the charges against the official are heard, or before the official is given an opportunity to prove his
innocence. Preventive suspension is merely a preliminary step in an administrative investigation and is not
in any way the final determination of the guilt of the official concerned.
4) CONDONATION RULE APPLIES; PRESUMPTION THAT ELECTORATE VOTES WITH FULL KNOWLEDGE OF
CANDIDATES CHARACTER (hehe)

OMB-VIS ARGUMENT
o The contract with F.E. Zuellig was signed just 4 days before the election. It was not made an issue
during the election, and so the electorate could not be said to have voted for Garcia with knowledge
of this particular aspect of his life and character, thus making the Salalima condonation rule
inapplicable.
o While the contract in question was signed during Garcias previous term, it was to commence or be
effective only on September 1998 or during his current term.
o Garcia thus went beyond the protective confines of jurisprudence when he agreed to extend his
act to his current term of office. Aguinaldo cannot apply because what is involved in this case is a
misconduct committed during a previous term but to be effective during the current term.
o Garcia performed two acts with respect to the contract: he provided for a suspensive period making
the supply contract commence or be effective during his succeeding or current term and during his
current term of office he acceded to the suspensive period making the contract effective during his
current term by causing the implementation of the contract.

GARCIAS ARGUMENT
o The only conclusive determining factor as regards the peoples thinking on the matter is an
election. His reelection has rendered the administrative case filed against him moot and academic.
This is because reelection operates as a condonation by the electorate of the misconduct
committed by an elective official during his previous term (citing Pascual v. Prov. Board of N.E.,
Aguinaldo, and Salalima v. Guingona).
o Salalima v Guingona applies. There, Albay governor Romeo R. Salalima of his administrative
liability as regards a retainer agreement he signed in favor of a law firm during his previous term,
although disbursements of public funds to cover payments under the agreement were still being
done during his subsequent term.
o Following the rule therein, the doctrine in Aguinaldo applies even where the effects of the act
complained of are still evident during the subsequent term of the reelected official.
o The implementation of the contract is a mere incident of its execution. Besides, according to
petitioner, the sole act for which he has been administratively charged is the signing of the
contract with F.E. Zuellig. The charge, excludes the contracts execution or implementation, or any
act subsequent to the perfection of the contract.

SC agrees with Garcia. That the people voted for an official with knowledge of his character is presumed,
precisely to eliminate the need to determine, in factual terms, the extent of this knowledge. Such an
undertaking will obviously be impossible.

SC decisions on the matter do not distinguish the precise timing or period when the misconduct was
committed, reckoned from the date of the officials reelection, except that it must be prior to said date.

Salalima v. Guingona: The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are
concerned, is still a good law. Such a rule is not only founded on the theory that an officials reelection
expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a
ground for administrative discipline which was committed during his previous term. We may add that sound
policy dictates it. To rule otherwise would open the floodgates to exacerbating endless partisan contests
between the reelected official and his political enemies, who may not stop to hound the former during his
new term with administrative cases for acts alleged to have been committed during his previous term. His
second term may thus be devoted to defending himself in the said cases to the detriment of public service...

In Salalima, the SolGen maintained that Aguinaldo did not apply to that case because the administrative
case against Governor Rodolfo Aguinaldo of Cagayan was already pending when he filed his certificate of
candidacy for his reelection bid. Nevertheless, in Salalima, SC applied the Aguinaldo doctrine, even if the
administrative case against Governor Salalima was filed after his reelection. The rule applies to this case.

Garcia cannot anymore be held administratively liable for the contract entered into during his previous term.

The assailed retainer agreement in Salalima was executed sometime in 1990. Governor Salalima was
reelected in 1992 and payments for the retainer continued to be made during his succeeding term. This
situation is no different from the one in the present case, wherein deliveries of the asphalt under the contract
with F.E. Zuellig and the payments therefor were supposed to have commenced on September 1998, during
Garcias second term.
OMB-VIS argues that the contract, although signed on May 7, 1998, during Garcias prior term, is to be
made effective only during his present term. SC does not think that this justifies a valid distinction in the
result. The agreement between Garcia (representing Cebu City) and F.E. Zuellig was perfected on the date
the contract was signed, during Garcias prior term. At that moment, Garcia already acceded to the terms of
the contract, including stipulations now alleged to be prejudicial to the city government. Thus, any culpability
Garcia may have in signing the contract already became extant on the day the contract was signed. It does
not matter that the deliveries under the contract are supposed to have been made months later.
While Garcia can no longer be held administratively liable for signing the contract with F. E. Zuellig, however,
this should not prejudice the filing of any case other than administrative against petitioner.
The ruling in this case may not be taken to mean Garcias total exoneration for whatever wrongdoing, if any,
might have been committed in signing the subject contract.
The ruling now is limited to the question of whether or not he may be held administratively liable
therefor, and it is our considered view that he may not.

DISPOSITION: Petition DENIED insofar as it seeks to declare that OMB-VIS committed grave abuse of discretion in
conducting an inquiry on complaints against Garcia et.al., and ordering their investigation pursuant to Ombudsmans
mandate under the Constitution and the Ombudsman Law.
Petition GRANTED insofar as it seeks to declare that OMB-VIS committed grave abuse of discretion concerning the
period of preventive suspension imposed on Garcia.
Garcias preventive suspension ordered LIFTED immediately.