Garcia vs. Mojica

The Ombudsman has authority to investigate and preventively suspend an elective local official, but reelection condones administrative misconduct committed during the prior term, and a preventive suspension cannot run for the maximum six months where its lawful purpose has already been served.

Petitioner Alvin B. Garcia was the Mayor of Cebu City. Respondents were officials of the Office of the Ombudsman (Visayas). The case tests the Ombudsman’s constitutional and statutory power under Article XI, Section 13 of the Constitution and R.A. No. 6770 to investigate and preventively suspend elective local officials, as against the Local Government Code’s suspension rules and the effect of reelection on administrative liability. The statutory backdrop includes R.A. No. 7160, which limits preventive suspension of local elective officials to 60 days after issues are joined, and R.A. No. 6770, which allows the Ombudsman to preventively suspend for up to six months.

Petitioner Alvin B. Garcia was the Mayor of Cebu City. On May 7, 1998, in his capacity as mayor, he signed a contract with F.E. Zuellig for the supply of asphalt to the city. The contract covered the period 1998-2001 and was to commence in September 1998, when the first delivery should have been made by F.E. Zuellig.

Sometime in March 1999, news reports came out regarding the alleged anomalous purchase of asphalt by Cebu City through the contract signed by petitioner. This prompted the Office of the Ombudsman (Visayas) to conduct an inquiry into the matter. Respondent Jesus Rodrigo T. Tagaan, special prosecution officer of the Office of the Ombudsman, was assigned to conduct the inquiry, docketed as INQ-VIS-99-0132. After his investigation, he recommended that the inquiry be upgraded to criminal and administrative cases against petitioner and the other city officials involved. Respondent Arturo C. Mojica, Deputy Ombudsman for the Visayas, approved this recommendation.

In a memorandum dated June 22, 1999, respondent Allan Francisco S. Garciano, the graft investigating officer to whom the case was raffled for investigation, recommended the preventive suspension of petitioner and the others. Two days later, or on June 24, 1999, the affidavit-complaint against petitioner was filed. The following day, on June 25, 1999, the Office of the Ombudsman issued the questioned preventive suspension order, placing petitioner under preventive suspension without pay for the maximum period of six months and telling him to cease and desist from holding office immediately. On June 29, 1999, petitioner filed a motion for reconsideration of the order, which was denied in an order dated July 5, 1999.

The memorandum recommending suspension was based on an initial investigation purportedly showing that (a) the contract for supply of asphalt to Cebu City was designed to favor F.E. Zuellig, (b) 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 payable in pesos, thus exposing the city government to the risks of a fluctuating exchange rate, and (c) the interest of the city under the contract was not protected by adequate security. 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 Office of the Ombudsman’s (Visayas) inquiry on whether they could supply Cebu City with asphalt and on what terms.

• Reelection and Condonation: Petitioner argued that his reelection rendered the administrative case moot and academic under Aguinaldo vs. Santos, because reelection operates as condonation by the electorate of misconduct committed during the previous term; he cited Pascual vs. Hon. Provincial Board of Nueva Ecija for the presumption that the people elected him with knowledge of his life and character and forgave his faults. He maintained that Salalima vs. Guingona applied even where the effects of the prior act continued during the subsequent term, and that the sole act charged was the signing of the contract, with implementation a mere incident.
• Ombudsman Jurisdiction over Prior-Term Act: Petitioner contended that the Office of the Ombudsman had no jurisdiction over the administrative case because the act charged was committed during his previous term and he had been reelected to the same position.
• Local Government Code Suspension Period and Procedure: Petitioner argued that, assuming Ombudsman jurisdiction, the six-month preventive suspension was grave abuse of discretion and violated Section 63 of the Local Government Code, which mandates preventive suspension of local elective officials only after the issues have been joined and only for a period not exceeding 60 days.
• Section 26(2) of the Ombudsman Law: Petitioner argued that the preventive suspension violated Section 26(2) of R.A. No. 6770 because the inquiry was converted into a full-blown administrative investigation without giving him the required 72 hours to submit a written answer to the charges.
• Strong Evidence: Petitioner argued that, assuming Ombudsman jurisdiction, respondents committed grave abuse of discretion in concluding that the evidence against him was “strong,” since the little evidence on record consisted solely of a hearsay affidavit and inadmissible newspaper reports.

• Reelection and Condonation: Respondents countered that Aguinaldo did not apply because the contract, though signed during petitioner’s previous term, was to commence or be effective only in September 1998 during his current term; petitioner “went beyond the protective confines” of jurisprudence by agreeing to extend his act to his current term, and performed two acts: providing a suspensive period making the contract commence during the current term, and causing its implementation during that term. They also pointed out that the contract was signed four days before the 1998 election and was not made an issue, so the electorate could not be presumed to have voted with full knowledge of that particular act.
• Ombudsman Authority and Applicable Law: Respondents argued that administrative complaints under the Ombudsman Law are distinct from those under the Local Government Code; the shorter 60-day period under the Local Government Code is intended to limit suspensions by a mayor, governor, or the President, who may be motivated by partisan political considerations, while the Ombudsman is a constitutional body not likely to be similarly motivated. They maintained that the Ombudsman may investigate local elective officials and that the six-month period under R.A. No. 6770 applies.
• Procedure under Section 26(2): Respondents stated that petitioner was given 10 days to submit his counter-affidavit to the complaint filed by respondent Tagaan, which was in keeping with Section 5(a) of the Rules of Procedure of the Office of the Ombudsman. They maintained that preventive suspension may be imposed even before the charges are heard.
• Strong Evidence: Respondents claimed that documents such as purchase orders, purchase requests, and disbursement vouchers showing petitioner’s guilt were obtained after petitioner had been suspended, and that even if an afterthought, they strengthened the evidence against him; they also relied on the initial findings in the Garciano memorandum.

• Effect of Reelection: Whether petitioner’s reelection rendered the administrative case moot and academic and barred the Ombudsman from holding him administratively liable for an act committed during his previous term.
• Ombudsman Jurisdiction: Whether the Office of the Ombudsman has jurisdiction to investigate and preventively suspend an elective local official for an act committed during a previous term after the official’s reelection.
• Applicable Suspension Law: Whether the Local Government Code (R.A. No. 7160) or the Ombudsman Law (R.A. No. 6770) governs the preventive suspension of an elective local official investigated by the Ombudsman.
• Procedural Due Process under Section 26(2): Whether the preventive suspension order violated Section 26(2) of R.A. No. 6770 for failure to give petitioner 72 hours to answer before the inquiry was converted into an administrative investigation.
• Strong Evidence: Whether there was strong evidence to justify the preventive suspension of petitioner.
• Period of Preventive Suspension: Whether the imposition of the maximum six-month preventive suspension constituted grave abuse of discretion.

• Effect of Reelection: Yes. Reelection operates as condonation, so petitioner cannot be held administratively liable for signing the contract during his previous term, even if deliveries and payments were to occur during his current term; other non-administrative cases are not barred.
• Ombudsman Jurisdiction: Yes. The Ombudsman has constitutional and statutory authority to investigate and preventively suspend elective local officials, including for prior-term acts; the power to investigate is distinct from the power to impose administrative liability.
• Applicable Suspension Law: R.A. No. 6770 governs. The Local Government Code’s 60-day limit does not repeal or restrict the Ombudsman’s preventive suspension power; the two laws govern different suspension authorities.
• Procedural Due Process under Section 26(2): No. The failure to give the 72-hour period did not invalidate the preventive suspension, which may issue before the charges are heard; petitioner was given 10 days to file a counter-affidavit under the Ombudsman Rules.
• Strong Evidence: Yes. The Ombudsman’s initial findings on the contract’s alleged favoritism, excessive cost, exchange-rate risk, and inadequate security sufficiently supported the preventive suspension.
• Period of Preventive Suspension: Yes. The six-month maximum was excessive; the 24 days from June 25 to July 19, 1999 were sufficient for the lawful purpose, so the suspension was lifted immediately.

• Effect of Reelection: The SC applied the rule that a reelected local official may not be held administratively accountable for misconduct committed during the prior term. The rationale is that the electorate is presumed to have re-elected him with full knowledge of his life and character, including past misconduct, and such reelection is condonation. Respondents’ argument that the contract was signed four days before the election and was not an election issue did not persuade the SC: knowledge is presumed precisely to eliminate the need to determine the actual extent of the electorate’s knowledge, and the rulings do not distinguish the precise timing except that the misconduct must be prior to reelection. Salalima vs. Guingona applied: the retainer agreement there was executed in 1990, Salalima was reelected in 1992, and payments continued during the succeeding term; this was no different from the asphalt deliveries and payments that were supposed to commence in September 1998 during petitioner’s second term. The contract was perfected on May 7, 1998, during the prior term, and any culpability already became extant then; later deliveries did not matter. Thus petitioner could not be administratively liable for signing the contract, though the ruling did not exonerate him from other cases.
• Ombudsman Jurisdiction: The SC held that the Ombudsman’s authority to investigate is mandated by Article XI, Section 13 of the Constitution, which allows investigation on its own or on complaint of any act or omission of any public official when illegal, unjust, improper, or inefficient. R.A. No. 6770, Section 19, grants the Ombudsman power to act on administrative complaints, and Section 21 gives disciplinary authority over all elective and appointive officials except officials removable only by impeachment, Members of Congress, and the Judiciary. Petitioner was an elective local official accused of grave misconduct and dishonesty, so the Ombudsman could investigate. The SC distinguished the power to investigate from the power to hold administratively liable. Under Section 24, the Ombudsman or Deputy may preventively suspend an officer under his authority if in his judgment the evidence of guilt is strong and the charge involves dishonesty, oppression, grave misconduct, or neglect; would warrant removal; or the respondent’s continued stay may prejudice the case. “Under his authority” covers all officials under investigation regardless of branch, except the exempt officials. The Deputy Ombudsman could issue the suspension to prevent the official from using his office to intimidate or influence witnesses or tamper with records.
• Applicable Suspension Law: Petitioner invoked Section 63 of the Local Government Code, which requires that preventive suspension of local elective officials be imposed only after issues are joined and for not more than 60 days. The SC held that the Local Government Code did not repeal or restrict the Ombudsman Law. In Hagad vs. Gozo-Dadole, the SC ruled that the two statutes are not so inconsistent as to require striking down one; they govern differently. Administrative complaints under the Ombudsman Law are distinct from those under the Local Government Code. The shorter Local Government Code period is intended to limit suspensions by a mayor, governor, or the President, who may be motivated by partisan politics, while the Ombudsman is a constitutional body not likely to be similarly motivated. The distinction is valid but not decisive of whether there was grave abuse of discretion in a specific case. The SC also noted that preventive suspension may be imposed before the charges are heard and is not a final determination of guilt.
• Procedural Due Process under Section 26(2): Section 26(2) of R.A. No. 6770 requires that if the Ombudsman finds reasonable ground to investigate further, it shall furnish the respondent a summary of the complaint and require a written answer within 72 hours. The SC observed that it did not appear petitioner was given the requisite 72 hours. This did not invalidate the preventive suspension, because preventive suspension may be issued even before the charges are heard or before the official is given an opportunity to prove his innocence. Respondents also stated that petitioner was given 10 days to submit his counter-affidavit to the complaint filed by Tagaan, and the SC found this 10-day period in keeping with Section 5(a) of the Rules of Procedure of the Office of the Ombudsman.
• Strong Evidence: Under Section 24, preventive suspension requires the Ombudsman’s judgment that the evidence of guilt is strong. The determination of whether the evidence is strong rests with the Ombudsman, and the discretion over the period also belongs to the Ombudsman, except that the period cannot exceed the statutory maximum. Both the strength of the evidence and the propriety of the period are reviewable in a petition for certiorari and prohibition under Rule 65. The inquiry was prompted by newspaper reports on the allegedly anomalous contract. The Garciano memorandum recommended suspension based on an initial investigation showing that the contract was designed to favor F.E. Zuellig, the amount was too expensive compared to local suppliers such as Shell and Petron, the amount was fixed in dollars and payable in pesos, exposing the city to exchange-rate risk, and the city’s interest was not protected by adequate security. These findings were based on the contract and letters from Bitumex and Credit Lyonnais, as well as replies from Shell and Petron to the Ombudsman’s inquiry. Given these findings, the SC could not say there was no evidence sufficiently strong to justify preventive suspension.
• Period of Preventive Suspension: The purpose of preventive suspension is to prevent the official from using his office to intimidate or influence witnesses or tamper with records. The Solicitor General stated during oral argument that the documents showing petitioner’s guilt, such as purchase orders, purchase requests, and disbursement vouchers, were obtained after petitioner had been suspended. If the purpose was to gather documents without petitioner’s intervention, that purpose was already achieved during the nearly month-long suspension from June 25 to July 19, 1999. Even granting that the evidence against petitioner was already strong, and without conceding that it was initially weak, the SC held that the maximum six-month period was excessive and longer than necessary for the Ombudsman to make its legitimate case. The 24 days of suspension were sufficient for the lawful purpose, so the six-month suspension was grave abuse of discretion and was lifted.

• Reelection as Condonation — A reelected local elective official may not be held administratively accountable for misconduct committed during the prior term because the electorate is presumed to have re-elected him with full knowledge of his life and character, including past misconduct; reelection is condonation. The SC applied this to the signing of the F.E. Zuellig contract during the prior term, even though deliveries and payments were to occur during the current term, because the contract was perfected at signing and any culpability became extant then. The ruling did not bar other cases against petitioner.
• Ombudsman’s Power to Investigate and Preventively Suspend — The Ombudsman has constitutional and statutory authority under Article XI, Section 13 of the Constitution and R.A. No. 6770 to investigate any act or omission of a public official and to preventively suspend an official under investigation. The power to investigate is distinct from the power to hold administratively liable. Preventive suspension under Section 24 requires the Ombudsman’s judgment that the evidence of guilt is strong and that any of the enumerated conditions exists; it may be issued by the Ombudsman or Deputy Ombudsman and lasts until the case is terminated but not more than six months without pay. “Under his authority” covers all officials under investigation except those removable only by impeachment, Members of Congress, and the Judiciary.
• Preventive Suspension as Preliminary Step — Preventive suspension is merely a preliminary step in an administrative investigation and is not a final determination of guilt; it may be imposed even before the charges are heard or before the official is given an opportunity to prove his innocence. The SC applied this to reject petitioner’s claim that the failure to give him 72 hours under Section 26(2) invalidated the suspension.
• Grave Abuse of Discretion in the Period of Preventive Suspension — The Ombudsman has discretion to fix the period of preventive suspension but cannot extend it beyond the statutory maximum; certiorari and prohibition under Rule 65 may review both the strength of the evidence and the period. The SC held that imposing the full six-month maximum was excessive where the lawful purpose of preventing document tampering or witness intimidation had already been achieved during the 24-day suspension.
• Local Government Code vs. Ombudsman Law — The Local Government Code’s 60-day limit for preventive suspension of local elective officials does not repeal or restrict the Ombudsman’s power under R.A. No. 6770 to preventively suspend for up to six months. The two laws govern different suspension authorities; the shorter Local Government Code period is aimed at suspensions by the mayor, governor, or President, who may be politically motivated, while the Ombudsman is a constitutional body. The distinction is valid but not decisive of grave abuse in a specific case.

• “In a number of cases, we have repeatedly held that a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office.” — The SC states the condonation rule that governs petitioner’s administrative liability for the prior-term contract.
• “The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds.” — The SC explains the presumption of knowledge and why reelection extinguishes administrative liability for prior-term misconduct.
• “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.” — The SC uses this to reject the argument that the suspension was invalid because petitioner was not first given 72 hours to answer.
• “Granting that now the evidence against petitioner is already strong, even without conceding that initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer than necessary for the Ombudsman to make its legitimate case against petitioner.” — The SC explains why it lifted the six-month preventive suspension despite finding sufficient evidence to support suspension in principle.

• Aguinaldo vs. Santos, 212 SCRA 768 (1992) — Precedent on reelection as condonation; discussed and its rule qualified as to criminal cases in Salalima.
• Pascual vs. Hon. Provincial Board of Nueva Ecija, 106 Phil. 466 (1959) — Controlling precedent on reelection as condonation; rule adopted in Salalima and applied to petitioner.
• Salalima vs. Guingona, 257 SCRA 55 (1996) — Controlling precedent; followed and applied to hold that a reelected official cannot be administratively liable for a prior-term contract despite continued performance during the later term.
• Hagad vs. Gozo-Dadole, 251 SCRA 242 (1995) — Controlling precedent; followed on the non-repeal of the Ombudsman Law by the Local Government Code and on the different suspension regimes.
• Buenaseda vs. Flavier, 226 SCRA 645 (1993) — Precedent interpreting “under his authority” in the Ombudsman’s preventive suspension power; followed.
• Gloria vs. CA, G.R. No. 131012, April 21, 1999 — Precedent on the purpose of preventive suspension, namely to prevent the official from intimidating or influencing witnesses; cited.
• Yasay vs. Desierto, G.R. No. 134495, December 28, 1998 — Precedent on the purpose of preventive suspension, namely to prevent tampering with records; cited.
• Castillo-Co vs. Barbers, 290 SCRA 717 (1998) — Precedent on the Ombudsman’s discretion over the period of preventive suspension and the statutory limit; cited.

• Article XI, Section 13, Constitution — Grants the Ombudsman power to investigate on its own or on complaint any act or omission of any public official, employee, office, or agency when it appears illegal, unjust, improper, or inefficient; applied to uphold the inquiry into petitioner.
• Section 19, R.A. No. 6770 (Ombudsman Law) — Requires the Ombudsman to act on administrative complaints relating to acts or omissions that are contrary to law, unreasonable, unfair, oppressive, discriminatory, irregular, immoral, or devoid of justification; applied to support the administrative complaint against petitioner.
• Section 21, R.A. No. 6770 — Gives the Ombudsman disciplinary authority over all elective and appointive officials, except officials removable only by impeachment, Members of Congress, and the Judiciary; applied because petitioner was an elective local official.
• Section 24, R.A. No. 6770 — Authorizes preventive suspension if the Ombudsman judges the evidence of guilt strong and the charge involves dishonesty, oppression, grave misconduct, or neglect; would warrant removal; or continued stay may prejudice the case, for not more than six months without pay; applied to uphold the power but not the full six-month period.
• Section 26(2), R.A. No. 6770 — Requires that, upon a finding of reasonable ground to investigate further, the respondent be furnished a summary of the complaint and required to answer within 72 hours; applied but held not to invalidate the preventive suspension.
• Section 5(a), Rules of Procedure of the Office of the Ombudsman (Administrative Order No. 07) — Requires the respondent to be furnished copies of the complainant’s affidavits and evidence and to file counter-affidavits within 10 days; applied to petitioner’s 10-day period.
• Section 63, R.A. No. 7160 (Local Government Code) — Limits preventive suspension of local elective officials to after issues are joined and to not more than 60 days; invoked by petitioner but held not to govern Ombudsman-initiated administrative complaints.
• Rule 65, Rules of Court — Provides certiorari and prohibition where an officer exercising judicial or quasi-judicial functions acts with grave abuse of discretion amounting to lack or excess of jurisdiction and there is no appeal or plain, speedy, adequate remedy; applied as the remedy to review the strength of evidence and the period of suspension.