The Court of Appeals (CA)  Former Special Twelfth Division ordered the reinstatement of dismissed mayor Leonila “Nila” Montero to her former position as municipal mayor of Panglao, as it denied the motion for reconsideration filed by Augustin Cloribel.

In a four-page resolution promulgated on October 16, 2018, the CA deemed that since Montero appears to have already served the administrative penalty of three months suspension without pay imposed by the original Ombudsman decision, her reinstatement is immediate by operation of law.

According to the CA, its decision dated June 28, 2018, that overturned the dismissal order of the Ombudsman against Montero and reinstating its original suspension order has attained finality noting the Ombudsman’s failure to file an appeal or motion for reconsideration (MR) within the reglementary period.

The CA pointed out that the Ombudsman received the June 28, 2018 decision on August 1, 2018, but did not file a motion for reconsideration before the lapse of the 15 days reglementary period which was on or before August 16, 2018.

RULE OF MEN

However, her imminent return to “reclaim her crown” as she described her tumultuous “premature” re-assumption as mayor on September 10, 2018, was again marred by the brazen act of several unidentified persons sealing the office of Mayor Pedro Fuertes with hollow blocks.

Fuertes narrated to the Chronicle that in the afternoon of October 19, 2018, Municipal Budget Officer Lino Sumaylo barged into his office and brusquely ordered the turnover of several pieces of office equipment including his table to them.

Sumaylo’s group failed in their attempt to take away what they demanded after Fuertes challenged them to show a copy of a DILG order implementing the CA resolution reinstating Montero as mayor of Panglao.

Early morning yesterday, neighbors spotted several unidentified persons lugging hollow blocks inside the building leading to Fuertes office. Witnesses reported to Fuertes that the door of his office was sealed with concrete hollow blocks.

According to Fuertes, to his consternation, the unidentified persons were seen by four police officers entering the building where his office is located but the latter appeared indifferent to what was happening.

Fuertes recalled a similar incident where biometric machines were forcibly pried from their location reportedly in the presence of two police officers.

The only way into his office is a circuitous route that will require him to pass through the Sangguniang Bayan session hall at the other end of the building, according to Fuertes.

UNRESPONSIVE    

The Ombudsman also did not respond to the query of the Department of Interior and Local Government (DILG) on August 15, 2018, a day before the lapse of the 15 days reglementary period for the filing of a motion for reconsideration.

The DILG asked if the Ombudsman has received the CA June 28, 2018 decision, whether the office will file a motion for reconsideration and the effect of an MR to be filed by the Ombudsman to the DILG’s order implementing the dismissal order on Montero.

NO LEGAL PERSONALITY 

The CA resolution also stressed that Cloribel “has no direct legal personality to impugn our Decision and move for its reconsideration” and is not adversely affected by the court’s decision.

In an administrative case, the CA said the complainant is a “mere witness” since no private interest is involved as the offense is committed against the government.

OFF TO THE SUPREME COURT

Unfazed by the CA resolution, Cloribel filed a notice of appeal before the Supreme Court while asking the Sandiganbayan to immediately implement a mandatory preventive suspension of Montero as mayor of Panglao.

Montero is out on bail after the Ombudsman filed criminal charges before the Sandiganbayan for four counts of violation of section 3(e) of Republic Act (RA) 3019 and four counts of violation of article 244 of the Revised Penal Code.

Cloribel invoked section 13 of Republic Act (RA) No. 3019 mandating the Sandigangbayan to issue the order of suspension “as a matter of course” while the case is going on (pendente lite).

According to Cloribel, once a criminal information is filed before the Sandiganbayan and found to be sufficient in form and substance, the graft court “possesses no discretion to determine whether a preventive suspension is necessary.”

The presumption is that unless the accused is suspended, she may frustrate the prosecution of the case, commit further acts of malfeasance or do both,” according to Cloribel.

CONTRASTING LEGAL EVIDENCE

The CA resolution did not agree with Cloribel’s claim that since criminal charges were filed by the Ombudsman against  Montero based on substantial evidence for grave misconduct, “then we must also find substantial evidence” in the administrative aspect of the case.

The CA emphasized that they rely on their independent judgment in resolving cases brought before them and “is not bound by any findings of the Office of the Ombudsman.

The CA found erroneous to argue that once a criminal information has been filed with the courts, a public officer in an administrative proceeding must also be found guilty of the administrative charge.

The resolution drew the line between probable cause as the standard for a criminal information from substantial evidence in an administrative case.

NO LEGAL PRECEDENT

Cloribel initiated the investigation against Montero with the Ombudsman for appointing four losing candidates, three of which were her party mates in violation of the one year ban as provided in the Constitution and the Local Government Code.

The Ombudsman initially suspended Montero for three months without pay for simple misconduct then upgraded the penalty to dismissal from the service for grave misconduct.

On appeal, the CA ruled that Cloribel failed to prove the element of corruption, clear intent to violate the law or flagrant disregard of an established rule on the part of Montero to qualify her acts as “grave misconduct.”

According to the CA, there is still no definitive ruling on job orders and contracts of services in relation to the one year ban on the appointments of losing candidates.

Montero only relied on several issuances from different executive bodies and agencies including the DILG on the issue, therefore “malice may not be imputed” upon Montero, according to the CA resolution.

With the latest legal development, a mesmerized public fired by the weekly spectacle of two mayors in attendance during the flag ceremony will again witness another embarrassing drama unfolding tomorrow as both Fuertes and Montero battle for the minds and hearts of the residents of Panglao. (Chito M. Visarra)