G.R. No. 180917 April 23, 2010
ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAÑA, Petitioners,
vs.
OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON, SALVADOR ADUL, and AGNES FABIAN, Respondents,
x x x x
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
Chief Justice
Footnotes
4 Counter Affidavit, id. at 238.
5 Id. at 243.
11 Id. at 277.
12 Id. at 154-155.
14 Vide rollo, 184-185.
15 Compare supra notes 8 and 14.
18 Id. at 471.
19 Id. at 472.
20 123 Phil. 916 (1966).
21 Id. at 919.
22 129 Phil. 553 (1967).
31 Id. at 179-180.
32 G.R. No. 189698, February 22, 2010.
39 Republic Act No. 7610, Sec. 481(b)(4).
42 G.R. No. 169029, August 22, 2006, 499 SCRA 567.
ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAÑA, Petitioners,
vs.
OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON, SALVADOR ADUL, and AGNES FABIAN, Respondents,
D E C I S I O N
CARPIO MORALES, J.:
Petitioners Vicente Salumbides, Jr. (Salumbides) and
Glenda Araña (Glenda) challenge the October 11, 2007 Decision and the
December 13, 2007 Resolution of the Court of Appeals1 in CA-G.R. SP No. 96889 affirming the Office of the Ombudsman's decision finding them guilty of Simple Neglect of Duty.
Salumbides and Glenda were appointed in July 2001 as
Municipal Legal Officer/Administrator and Municipal Budget Officer,
respectively, of Tagkawayan, Quezon.
Towards the end of 2001, Mayor Vicente Salumbides III
(the mayor) saw the urgent need to construct a two-classroom building
with fence (the projects) for the Tagkawayan Municipal High School2
(TMHS) since the public school in the poblacion area would no longer
admit high school freshmen starting school year 2002-2003. On how to
solve the classroom shortage, the mayor consulted Salumbides who
suggested that the construction of the two-classroom building be charged
to the account of the Maintenance and Other Operating Expenses/ Repair
and Maintenance of Facilities (MOOE/RMF) and implemented "by
administration," as had been done in a previous classroom building
project of the former mayor.
Upon consultation, Glenda advised Salumbides in
December 2001, that there were no more available funds that could be
taken from the MOOE/RMF, but the savings of the municipal government
were adequate to fund the projects. She added, however, that the
approval by the Sangguniang Bayan of a proposed supplemental budget must be secured.
The members of the Sangguniang Bayan having already gone on recess for the Christmas holidays, Glenda and Salumbides advised the mayor to source the funds from the P1,000,000 MOOE/RMF allocation in the approved Municipal Annual Budget for 2002.3
The mayor thus ordered on January 8, 2002 Municipal
Engineer Jose Aquino (Aquino) to proceed with the construction of the
projects based on the program of work and bill of materials he (Aquino)
prepared with a total cost estimate of P222,000.
Upon advice of Municipal Planning and Development
Officer Hernan Jason (Jason), the mayor included the projects in the
list of local government projects scheduled for bidding on January 25,
2002 which, together with the January 31, 2002 public bidding, failed.
The mayor was to admit later his expectation or assumption of risk on reimbursement:
x x x It was my thinking that even if a bidder
emerges and gets these 2 projects which were at the time on-going
(although it was also my thinking then that no bidder would possibly bid
for these 2 projects as these were cost-estimated very low-P150,000 for
the 2-room school building P72,000 for the fencing) he (bidder) would be reasonable enough to reimburse what I had so far spen[t] for the project.
I said "I" because up to the time of the failed 2 biddings I have
shouldered the "vale" of the laborers and I requisitioned some materials
on credit on my own personal account, and not a single centavo was at
the time disbursed by our municipal treasury until all requirements for
negotiated purchase of the materials for the project had been
accomplished. As a matter of fact, payments for the expenses on these 2 projects have been made only starting 19 March 2002. x x x4 (underscoring supplied)
The construction of the projects commenced without
any approved appropriation and ahead of the public bidding. Salumbides
was of the opinion that the projects were regular and legal, based on an
earlier project that was "implemented in the same manner, using the
same source of fund and for the same reason of urgency" which was
allowed "because the building was considered merely temporary as the
TMHS is set to be transferred to an 8-hectare lot which the municipal
government is presently negotiating to buy."5
Meanwhile, Aquino suggested to the Sangguniang Bayan
the adoption of "model guidelines" in the implementation of
infrastructure projects to be executed "by administration," while
Councilor Coleta Sandro (Coleta) sponsored a Resolution to ratify the
projects and to authorize the mayor to enter into a negotiated
procurement. Both actions did not merit the approval of the Sangguniang Bayan.
On May 13, 2002, herein respondents Ricardo Agon,
Ramon Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian, all
members of the Sangguniang Bayan of Tagkawayan, filed with the Office of
the Ombudsman a complaint6 against Salumbides and Glenda (hereafter petitioners), the mayor, Coleta, Jason and Aquino.
The administrative aspect of the case, docketed as
Case No. OMB-L-A-02-0276-E, charged petitioners et al. with Dishonesty,
Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to the Best
Interest of the Service, and violation of the Commission on Audit (COA)
Rules and the Local Government Code.
By Order of June 14, 2002, the Office of the
Ombudsman, denied the prayer to place petitioners et al. under
preventive suspension pending investigation. By Order dated February 1,
2005, approved on April 11, 2005, it denied the motion for
reconsideration but dropped the mayor and Coleta, both elective officials, as respondents in the administrative case,
the 2004 elections having mooted the case. The parties were thereupon
directed to submit their respective verified position papers to which
petitioners, Jason and Aquino complied by submitting a consolidated
position paper on May 19, 2005.
Meanwhile, in response to the subpoena duces tecum
issued by the Office of the Ombudsman on February 18, 2005 requiring
the regional officer of the COA to submit the post-audit report on the
projects, Celerino Alviar, COA State Auditor II claimed by Affidavit of
May 23, 2005 that the required documents were among those razed by fire
on April 14, 2004 that hit the Office of the Municipal Accountant where
they were temporarily stored due to lack of space at the Provincial
Auditor's Office.1avvphi1
On October 17, 2005, the Office of the Ombudsman approved the September 9, 2005 Memorandum absolving Jason and Aquino, and finding petitioners guilty of Simple Neglect of Duty,
for which they were meted the penalty of suspension from office for a
maximum period of six months with a stern warning against a similar
repetition. It also approved on November 2, 2006 the March 27, 2006
Order7 denying the motion for reconsideration.
Their recourse to the appellate court having failed, petitioners come before this Court via Rule 45 of the Rules of Court.
For non-compliance with the rule on certification
against forum shopping, the petition merits outright dismissal. The
verification portion of the petition does not carry a certification
against forum shopping.8
The Court has distinguished the effects of
non-compliance with the requirement of verification and that of
certification against forum shopping. A defective verification shall be treated as an unsigned pleading and thus produces no legal effect, subject to the discretion of the court to allow the deficiency to be remedied, while the
failure to certify against forum shopping shall be cause for dismissal
without prejudice, unless otherwise provided, and is not curable by
amendment of the initiatory pleading.9
Petitioners' disregard of the rules was not the
first. Their motion for extension of time to file petition was
previously denied by Resolution of January 15, 200810
for non-compliance with the required showing of competent proof of
identity in the Affidavit of Service. The Court, by Resolution of March
4, 2008,11
later granted their motion for reconsideration with motion to admit
appeal (Motion with Appeal) that was filed on February 18, 2008 or the
last day of filing within the extended period.
Moreover, in their Manifestation/Motion12 filed a day later, petitioners prayed only for the admission of nine additional
copies of the Motion with Appeal "due to honest inadvertence" in
earlier filing an insufficient number of copies. Petitioners were less
than candid when they surreptitiously submitted a Motion with Appeal
which is different from the first set they had submitted. The second set of Appeal includes specific Assignment of Errors13 and already contains a certification against forum shopping14
embedded in the Verification. The two different Verifications were
notarized by the same notary public and bear the same date and document
number.15 The rectified verification with certification, however, was filed beyond the reglementary period.
Its lapses aside, the petition just the same merits denial.
Petitioners urge this Court to expand the settled doctrine of condonation16
to cover coterminous appointive officials who were administratively
charged along with the reelected official/appointing authority with
infractions allegedly committed during their preceding term.
The Court rejects petitioners' thesis.
More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva Ecija17
issued the landmark ruling that prohibits the disciplining of an
elective official for a wrongful act committed during his immediately
preceding term of office. The Court explained that "[t]he underlying
theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor."18
The Court should never remove a public officer for
acts done prior to his present term of office. To do otherwise would be
to deprive the people of their right to elect their officers. When
the people elect[e]d a man to office, it must be assumed that they did
this with knowledge of his life and character, and that they disregarded
or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct[,] to practically overrule the will of the people.19 (underscoring supplied)
Lizares v. Hechanova, et al.20
replicated the doctrine. The Court dismissed the petition in that case
for being moot, the therein petitioner "having been duly reelected, is
no longer amenable to administrative sanctions."21
Ingco v. Sanchez, et al.22 clarified that the condonation doctrine does not apply to a criminal case.23 Luciano v. The Provincial Governor, et al.,24 Olivarez v. Judge Villaluz,25 and Aguinaldo v. Santos26 echoed
the qualified rule that reelection of a public official does not bar
prosecution for crimes committed by him prior thereto.
Consistently, the Court has reiterated the doctrine
in a string of recent jurisprudence including two cases involving a
Senator and a Member of the House of Representatives.27
Salalima v. Guingona, Jr.28 and Mayor Garcia v. Hon. Mojica29 reinforced
the doctrine. The condonation rule was applied even if the
administrative complaint was not filed before the reelection of the
public official, and even if the alleged misconduct occurred four days
before the elections, respectively. Salalima did not distinguish
as to the date of filing of the administrative complaint, as long as the
alleged misconduct was committed during the prior term, the precise
timing or period of which Garcia did not further distinguish, as
long as the wrongdoing that gave rise to the public official's
culpability was committed prior to the date of reelection.
Petitioners' theory is not novel.
A parallel question was involved in Civil Service Commission v. Sojor30 where the Court found no basis to broaden the scope of the doctrine of condonation:
Lastly, We do not agree with respondent's contention
that his appointment to the position of president of NORSU, despite the
pending administrative cases against him, served as a condonation by the
BOR of the alleged acts imputed to him. The doctrine this Court laid
down in Salalima v. Guingona, Jr. and Aguinaldo v. Santos are
inapplicable to the present circumstances. Respondents in the
mentioned cases are elective officials, unlike respondent here who is an
appointed official. Indeed, election expresses the sovereign will of
the people. Under the principle of vox populi est suprema lex, the
re-election of a public official may, indeed, supersede a pending
administrative case. The same cannot be said of a re-appointment to a
non-career position. There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president.31 (emphasis and underscoring supplied)lawph!l
Contrary to petitioners' asseveration, the
non-application of the condonation doctrine to appointive officials does
not violate the right to equal protection of the law.
In the recent case of Quinto v. Commission on Elections,32 the Court applied the four-fold test in an equal protection challenge33
against the resign-to-run provision, wherein it discussed the material
and substantive distinctions between elective and appointive officials
that could well apply to the doctrine of condonation:
The equal protection of the law clause is against
undue favor and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not intended to
prohibit legislation which is limited either in the object to which it
is directed or by territory within which it is to operate. It does not
demand absolute equality among residents; it merely requires that all
persons shall be treated alike, under like circumstances and conditions
both as to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only to
those persons falling within a specified class, if it applies alike to
all persons within such class, and reasonable grounds exist for making a
distinction between those who fall within such class and those who do
not.
Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They
are elected to an office for a definite term and may be removed
therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority.
Some appointive officials hold their office in a permanent capacity and
are entitled to security of tenure while others serve at the pleasure
of the appointing authority. x x x x
An election is the embodiment of the popular will,
perhaps the purest expression of the sovereign power of the people. It
involves the choice or selection of candidates to public office by
popular vote. Considering that elected officials are put in office by
their constituents for a definite term, x x x complete deference is
accorded to the will of the electorate that they be served by such
officials until the end of the term for which they were elected. In
contrast, there is no such expectation insofar as appointed officials are concerned. (emphasis and underscoring supplied)
The electorate's condonation of the previous
administrative infractions of the reelected official cannot be extended
to that of the reappointed coterminous employees, the underlying basis
of the rule being to uphold the will of the people expressed through the
ballot. In other words, there is neither subversion of the sovereign
will nor disenfranchisement of the electorate to speak of, in the case
of reappointed coterminous employees.
It is the will of the populace, not the whim of one
person who happens to be the appointing authority, that could extinguish
an administrative liability. Since petitioners hold appointive
positions, they cannot claim the mandate of the electorate. The people
cannot be charged with the presumption of full knowledge of the life and
character of each and every probable appointee of the elective official
ahead of the latter's actual reelection.
Moreover, the unwarranted expansion of the Pascual
doctrine would set a dangerous precedent as it would, as respondents
posit, provide civil servants, particularly local government employees,
with blanket immunity from administrative liability that would spawn and
breed abuse in the bureaucracy.
Asserting want of conspiracy, petitioners implore
this Court to sift through the evidence and re-assess the factual
findings. This the Court cannot do, for being improper and immaterial.
Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is not a trier of facts.34
As a rule, the Court is not to review evidence on record and assess the
probative weight thereof. In the present case, the appellate court
affirmed the factual findings of the Office of the Ombudsman, which
rendered the factual questions beyond the province of the Court.
Moreover, as correctly observed by respondents, the
lack of conspiracy cannot be appreciated in favor of petitioners who
were found guilty of simple neglect of duty, for if they conspired to
act negligently, their infraction becomes intentional.35 There can hardly be conspiracy to commit negligence.36
Simple neglect of duty is defined as the failure to
give proper attention to a task expected from an employee resulting from
either carelessness or indifference.37
In the present case, petitioners fell short of the reasonable diligence
required of them, for failing to exercise due care and prudence in
ascertaining the legal requirements and fiscal soundness of the projects
before stamping their imprimatur and giving their advice to their
superior.
The appellate court correctly ruled that as municipal
legal officer, petitioner Salumbides "failed to uphold the law and
provide a sound legal assistance and support to the mayor in carrying
out the delivery of basic services and provisions of adequate facilities
when he advised [the mayor] to proceed with the construction of the
subject projects without prior competitive bidding."38
As pointed out by the Office of the Solicitor General, to absolve
Salumbides is tantamount to allowing with impunity the giving of
erroneous or illegal advice, when by law he is precisely tasked to
advise the mayor on "matters related to upholding the rule of law."39
Indeed, a legal officer who renders a legal opinion on a course of
action without any legal basis becomes no different from a lay person
who may approve the same because it appears justified.
As regards petitioner Glenda, the appellate court
held that the improper use of government funds upon the direction of the
mayor and prior advice by the municipal legal officer did not relieve
her of liability for willingly cooperating rather than registering her
written objection40 as municipal budget officer.
Aside from the lack of competitive bidding, the
appellate court, pointing to the improper itemization of the expense,
held that the funding for the projects should have been taken from the
"capital outlays" that refer to the appropriations for the purchase of
goods and services, the benefits of which extend beyond the fiscal year
and which add to the assets of the local government unit. It added that
current operating expenditures like MOOE/RMF refer to appropriations for
the purchase of goods and services for the conduct of normal local
government operations within the fiscal year.41
In Office of the Ombudsman v. Tongson,42
the Court reminded the therein respondents, who were guilty of simple
neglect of duty, that government funds must be disbursed only upon
compliance with the requirements provided by law and pertinent rules.
Simple neglect of duty is classified as a less grave
offense punishable by suspension without pay for one month and one day
to six months. Finding no alleged or established circumstance to warrant
the imposition of the maximum penalty of six months, the Court finds
the imposition of suspension without pay for three months justified.
When a public officer takes an oath of office, he or
she binds himself or herself to faithfully perform the duties of the
office and use reasonable skill and diligence, and to act primarily for
the benefit of the public. Thus, in the discharge of duties, a public
officer is to use that prudence, caution, and attention which careful
persons use in the management of their affairs.43
Public service requires integrity and discipline. For
this reason, public servants must exhibit at all times the highest
sense of honesty and dedication to duty. By the very nature of their
duties and responsibilities, public officers and employees must
faithfully adhere to hold sacred and render inviolate the constitutional
principle that a public office is a public trust; and must at all times
be accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency.44
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 96889 are AFFIRMED with
MODIFICATION, in that petitioners, Vicente Salumbides, Jr. and Glenda
Araña, are suspended from office for three (3) months without pay.
SO ORDERED.CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chief Justice
ANTONIO T. CARPIO Associate Justice |
RENATO C. CORONA Associate Justice |
PRESBITERO J. VELASCO, JR. Associate Justice |
TERESITA J. LEONARDO-DE CASTRO Associate Justice |
ANTONIO EDUARDO B. NACHURA Associate Justice |
ARTURO D. BRION Associate Justice |
DIOSDADO M. PERALTA Associate Justice |
MARIANO C. DEL CASTILLO Associate Justice |
MARTIN S. VILLARAMA, JR. Associate Justice |
LUCAS P. BERSAMIN Associate Justice |
ROBERTO A. ABAD Associate Justice |
JOSE PORTUGAL PEREZ Associate Justice |
JOSE CATRAL MENDOZA
Associate Justice
Associate Justice
C E R T I F I C A T I O N
Pursuant to Article VIII, Section 13 of the
Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to
the writer of the opinion of the Court.
REYNATO S. PUNOChief Justice
Footnotes
1 Seventh Division then composed of Justice Remedios A. Salazar-Fernando, chairperson and ponente, and Justices Rosalinda Asuncion-Vicente and Enrico A. Lanzanas as members.
2
TMHS was being subsidized by the municipal government of Tagkawayan as
it had not yet been included in the regular budget of the Department of
Education.
3 Rollo, pp. 248-249.4 Counter Affidavit, id. at 238.
5 Id. at 243.
6
The criminal aspect of the case docketed as Case No. OMB-L-C-02-0426-E
deals with violations of paragraphs (a), (e), (g) and (i) of Section 3
of Republic Act No. 3019 (1960) or the Anti-Graft and Corrupt Practices
Act; paragraph (c) of Sections 366 and 369, paragraph (d) of Sections
534, 355 and 356 of Republic Act No. 7160 (1991) or the Local Government
Code; and Article 220 of the Revised Penal Code.
7
Upon the recommendation of Graft Investigator and Prosecution Officer I
(GIPO) Ma. Theresa D. Wu, the Office of the Ombudsman modified the
earlier recommendation of GIPO Mary Ayn T. Punzalan to absolve Glenda and reprimand Salumbides.
8 Vide rollo, p. 53.
9 Negros Oriental Planters Association, Inc. (NOPA) v. Presiding Judge of RTC-Negros Occidental, Br. 52, Bacolod City, G.R. No. 179878, Decmber 24, 2008, 575 SCRA 575, 583-584.
10 Rollo, p. 24.11 Id. at 277.
12 Id. at 154-155.
13 Vide Rules of Court, Rule 45, Sec. 4. Petitioners offer the following assignment of errors:
1. It was error for the Honorable Court of Appeals to deny the petitioners the benefit of the case of Arturo B. Pascual v. Prov. Board of Nueva Ecija;
2. It was error on the Honorable Court of Appeals
when it ruled that the petitioners including Mayor Vicente E. Salumbides
III were all guilty of conspiracy; [and]
3. It was error on the part of the Honorable Court of
Appeals when it affirmed the ruling of the Honorable Ombudsman finding
petitioners guilty of simple neglect of duty[,] for which they [were]
meted the penalty of suspension from office of a maximum period of six
(6) months. (italics supplied) Rollo, pp. 173-174.
15 Compare supra notes 8 and 14.
16 Conducto v. Monzon,
A.M. No. MTJ-98-1147, July 2, 1998, 291 SCRA 619, 634 even declared
that no ruling to the contrary had even rippled this doctrine.
17 106 Phil. 406 (1959).18 Id. at 471.
19 Id. at 472.
20 123 Phil. 916 (1966).
21 Id. at 919.
22 129 Phil. 553 (1967).
23
Id. at 556. It was held that "a crime is a public wrong more atrocious
in character than mere misfeasance or malfeasance committed by a public
officer in the discharge of his duties, and is injurious not only to a
person or group of persons but to the State as a whole. This must be the
reason why Article 89 of the Revised Penal Code, which enumerates the
grounds for extinction of criminal liability, does not include
reelection to office as one of them, at least insofar as a pubic officer
is concerned. Also, under our Constitution, it is only the President
who may grant the pardon of a criminal offense."
24
138 Phil. 546 (1969). Aside from the lack of distinction as to time of
commission under the Anti-Graft and Corrupt Practices Act, the Court
pointed out that one of the imposable penalties was perpetual
disqualification from public office, which extends beyond a particular
term of office. It remarked that an official may amass wealth through
graft and corrupt practices and thereafter use the same to purchase
reelection and thereby launder his evil acts. The Court further ruled
that the suspension under said statute is not self-operative as it needs
to be ordered by the court in which the criminal case is filed.
25
156 Phil. 137 (1974). It was held that since the criminal prosecution
is not abated by the fact of reelection, the pendency of a criminal case
under a valid Information under the Anti-Graft and Corrupt Practices
Act supplies the legal basis for the suspension from office in the
subsequent term in the event of reelection. It added, however, that the
suspension order issued during one term does not automatically apply or
extend to the new term to which the suspended official had been
reelected, in which case the trial court needs to issue anew a
supplemental order of suspension.
26 G.R. No. 94115, August 21, 1992, 212 SCRA 768.
27 Vide Office of the Ombudsman v. Evangelista, G.R. No. 177211, March 13, 2009, 581 SCRA 350, 361; Trillanes IV v. Pimentel, Sr., G.R. No. 179817, June 27, 2008, 556 SCRA 471, 488; Cabrera v. Marcelo, G.R. Nos. 157419-20, December 13, 2004, 446 SCRA 207, 216-217; People v. Judge Toledano, 387 Phil. 957, 964 (2000); People v. Jalosjos, 381 Phil. 690, 702-703 (2000).
28
326 Phil. 847 (1996). Citing sound public policy, the Court added that
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 allegedly committed during his prior term,
such that his second term may thus be devoted to defending himself in
those cases to the detriment of public service.
29
372 Phil. 892 (1999). The Court stated that there is the presumption
that the people voted for an official with knowledge of his character,
precisely to eliminate the need to determine in factual terms the extent
of this knowledge, which is an obviously impossible undertaking.
30 G.R. No. 168766, May 22, 2008, 554 SCRA 160.31 Id. at 179-180.
32 G.R. No. 189698, February 22, 2010.
33 Id., citing People v. Cayat,
68 Phil. 12, 18 (1939). The test has four requisites: (1) the
classification rests on substantial distinctions; (2) it is germane to
the purposes of the law; (3) it is not limited to existing conditions
only; and (4) it applies equally to all members of the same class.
34 Office of the Ombudsman v. Lazaro-Baldazo, G.R. No. 170815, February 2, 2007, 514 SCRA 141.
35 Compare with gross neglect of duty (vide
Hao v. Andres, A.M. No. P-07-2384, June 18, 2008, 555 SCRA 8). In Civil
Service Commission v. Rabang, (G.R. No. 167763, March 14, 2008, 548
SCRA 540, 547), gross neglect of duty or gross negligence refers to
"negligence characterized by the want of even slight care, acting or
omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with
a conscious indifference to consequences, insofar as other persons may
be affected. It is the omission of that care which even inattentive and
thoughtless men never fail to give to their own property. In cases
involving public officials, there is gross negligence when a breach of
duty is flagrant and palpable." In Report on the Alleged Spurious Bailbonds and Release Orders Issued by the RTC, Br. 27, Sta. Cruz, Laguna,
A.M. No. 04-6-332-RTC, April 5, 2006, 486 SCRA 500, 518, the Court
ruled that "[n]eglect of duty is the failure of an employee to give
one's attention to a task expected of him. Gross neglect, on the other
hand, is such neglect from the gravity of the case, or the frequency
of instances, becomes so serious in its character as to endanger or
threaten the public welfare. The term does not necessarily include willful neglect or intentional official wrongdoing."
36 Vide U.S. v. Mitlof
[165 F. Supp. 2d 558 (Dist. Court, S.D.N.Y. 2001)] observes that US
federal courts have dismissed as a logical impossibility the idea that
one can conspire to act unintentionally; Sackman v. Liggett Group Inc., 965 F. Supp. 391, 394 (Dist. Court E.D.N.Y. 1997) states that there can be no conspiracy to be negligent- that is, to intend to act negligently; Sonnenreich v. Philip Morris Inc. [929 F. Supp. 416, 419 (S.D. Fla. 1996)] recognizes that a conspiracy to commit negligence is a non sequitur; Rogers v. Furlow [699 F. Supp. 672, 675 (N.D. Ill. 1988)] declares that a conspiracy to commit negligence is a paradox at best.
37 Galero v. Court of Appeals, G.R. No. 151121, July 21, 2008, 559 SCRA 11.
38 Rollo, p. 66. 39 Republic Act No. 7610, Sec. 481(b)(4).
40
Republic Act No. 7160, Sec. 342. Liability for Acts Done Upon Direction
of Superior Officer, or Upon Participation of Other Department Heads or
Officers of Equivalent Rank. - Unless he registers his objection in
writing, the local treasurer, accountant, budget officer, or other accountable officer shall
not be relieved of liability for illegal or improper use or application
or deposit of government funds or property by reason of his having
acted upon the direction of a superior officer, elective or appointive,
or upon participation of other department heads or officers of
equivalent rank. The superior officer directing, or the department
head participating in such illegal or improper use or application or
deposit of government funds or property, shall be jointly and severally
liable with the local treasurer, accountant, budget officer, or other
accountable officer for the sum or property so illegally or improperly
used, applied or deposited. (underscoring supplied); cf. Frias, Sr. v. People, G.R. No. 171437, October 4, 2007, 534 SCRA 654, as applied in criminal cases.
41 Rollo, p. 67, citing Republic Act No. 7160, Sec. 306 (d) & (f). 42 G.R. No. 169029, August 22, 2006, 499 SCRA 567.
43 Vide Farolan v. Solmac Marketing Corporation, G.R. No. 83589, March 13, 1991, 195 SCRA 168, 177-178.
44 Galero v. Court of Appeals, supra at 24.
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