Lopez vs. Ericta

A Dean of the University of the Philippines College of Education is elected by the Board of Regents on nomination by the University President; the President’s ad interim appointment is not an election and is subject to Board approval. On the facts, the 5-3-4 vote did not confirm Dr. Blanco, and the Board’s valid reconsideration cancelled the vote and terminated her ad interim appointment.

The University of the Philippines is governed by its Charter (Act No. 1870) and Revised Code, under which the Dean of each college is elected by the Board of Regents from the faculty on nomination by the University President. Dr. Consuelo S. Blanco’s claim to the Deanship of the College of Education is measured against those provisions.

On April 27, 1970, University President Salvador P. Lopez extended to Dr. Consuelo S. Blanco an ad interim appointment as Dean of the College of Education, effective May 1, 1970 until April 30, 1971, unless sooner terminated and subject to the approval of the Board of Regents and pertinent University regulations. Dr. Blanco assumed office as ad interim Dean on May 1, 1970.

The Board of Regents met on May 26, 1970, and President Lopez submitted Blanco’s ad interim appointment for reconsideration. The minutes recorded that the Board voted to defer action because Regent Kalaw objected based on a petition against the appointment addressed to the Board by a majority of the faculty and a number of alumni; the matter was referred to the Committee on Personnel, reconstituted with Regent Ambrosio F. Tangco as chairman and Regents Pio Pedrosa and Liceria B. Soriano as members. The Chairman of the Board expressed the view that Blanco’s appointment had lapsed because of the deferment, but, on the President’s query, said there should be no objection to another ad interim appointment in Blanco’s favor pending final Board action. On the same day, May 26, 1970, President Lopez extended another ad interim appointment to Blanco, effective May 26, 1970 to April 30, 1971, with the same conditions as the first.

At the Board’s next meeting on July 9, 1970, the minutes showed that the Personnel Committee recommended that the Board request the President to review his nomination in light of testimonies and discussions during the Committee’s meetings on June 4 and June 11, 1970. Regent Tangco explained that the Committee, after hearing testimonies and going over materials, was in favor of recommending that Blanco’s nomination cannot be accepted, but it chose a diplomatic formulation to avoid embarrassment and to have the President ask Blanco to withdraw. Regent Kalaw noted the same understanding, and Regent Tangco reiterated that the agreement was for the President to ask Blanco to withdraw. Regent Pedrosa suggested that the Committee members inhibit themselves from voting, and he and Regent Tangco did so; Regent Soriano was not present, and Regent Leocadio substituted for her.

When the matter was put to a vote, Regent Tangco announced that the Committee was withdrawing its recommendation, and the Chairman stated that the issue was simply whether to confirm or not confirm Blanco’s ad interim appointment. Regent Silva remarked that the Committee’s withdrawal referred to the recommendation per se as written but that the Committee was actually putting a recommendation for non-confirmation, and Regent Kalaw agreed. The roll-call vote produced five affirmative votes from Regents Fonacier, Escobar, Barican, Lopez, and Agbayani; three negative votes from Regents Kalaw, Silva, and Corpuz; and four abstentions from Regents Tangco, Leocadio (substituting for Regent Soriano), Pedrosa, and Virata. Before voting, Regent Virata explained that he abstained because he was not ready to make a decision.

After the result was announced, the Chairman ruled that Blanco had not obtained the necessary number of votes, and the Board agreed to expunge the result of the voting. On Regent Agbayani’s motion, duly seconded, the Board suspended action on Blanco’s ad interim appointment. The Chairman stated that the decision would return the case to its original status and give the Board more time, that the Board had not acted on the confirmation either adversely or favorably, and that Blanco’s ad interim appointment effective May 26, 1970 terminated as of July 9, 1970. The Board then approved, without objection, a motion for reconsideration to the effect that the record of the voting would not appear in the record.

On July 10, 1970, Blanco wrote the Board requesting reconsideration of its interpretation of the legal effect of the 5-3-4 vote on her ad interim appointment. On August 18, 1970, she wrote the University President protesting the appointment of Oseas A. del Rosario as Officer-in-Charge of the College of Education. Neither communication elicited an official reply, and Blanco filed a petition for certiorari and prohibition with preliminary injunction in the CFI of Quezon City.

• Counting Abstentions: Petitioners argued that abstentions should not be counted as affirmative votes, because that would allow a nominee to be elected by only one affirmative vote with eleven members abstaining.

• Counting Abstentions: Respondent countered that abstentions should be recorded in the affirmative because refusal to vote indicates acquiescence in the action of those who vote affirmatively, and the silence of abstaining members is construed as acquiescence so far as any construction is necessary.

• Election of Dean: Whether Dr. Consuelo S. Blanco was duly elected Dean of the College of Education in the July 9, 1970 meeting of the Board of Regents.
• Counting of Abstentions: Whether the four abstentions in the 5-3-4 vote should be counted as affirmative votes for confirmation of Blanco’s ad interim appointment.
• Board Reconsideration: Whether the Board of Regents could validly reconsider and cancel the result of the voting and terminate Blanco’s ad interim appointment before adjournment.
• Ad Interim Appointment: Whether Blanco could claim the Deanship by virtue of the May 26, 1970 ad interim appointment.

• Election of Dean: No. The 5-3-4 vote did not elect or confirm Dr. Blanco as Dean; the record showed the Personnel Committee opposed her appointment and that the abstainers did not acquiesce in her confirmation.
• Counting of Abstentions: No. The presumption that an abstention signifies acquiescence is only prima facie and was rebutted by the record; the four abstentions cannot be counted as affirmative votes for Blanco.
• Board Reconsideration: Yes. The Board could reconsider and cancel its action before adjournment, and no title to the Deanship had vested in Blanco at the time.
• Ad Interim Appointment: No. The President could only nominate a Dean; the ad interim appointment was subject to Board approval and was terminated when the Board did not confirm it.

• Election of Dean: Under Section 10 of the U.P. Charter and Article 78 of the Revised Code, the Dean is elected by the Board of Regents from the faculty on nomination by the President. The July 9, 1970 roll call gave Blanco five affirmative votes, three negative votes, and four abstentions. The transcript showed that the Personnel Committee had actually recommended rejection but clothed it in diplomatic language to ask the President to have Blanco withdraw; Regents Silva and Kalaw clarified that the Committee was recommending non-confirmation. The SC therefore concluded that Blanco was clearly not the choice of a majority of the Board.
• Counting of Abstentions: The respondent’s theory counted an abstention as affirmative only insofar as it could be construed as acquiescence in the affirmative votes, a presumption that is merely prima facie and yields to clear evidence to the contrary. The record supplied that contrary evidence: the Personnel Committee members were for rejection, Regent Tangco and Regent Pedrosa inhibited themselves after explaining the Committee’s position, and Regent Virata said he was abstaining because he was not ready to decide. Their abstentions could not be construed as votes for confirmation, so the authorities on abstention did not govern the result.
• Board Reconsideration: In the same July 9, 1970 meeting, before adjournment, the Board resolved without dissent to cancel the action taken, including the result of the voting, and to return the case to its original status. The Chairman announced that the Board had not acted on confirmation either adversely or favorably but that the ad interim appointment had terminated. A deliberative body may reconsider its action while the meeting is open and the subject is not closed, and no title to the office had vested in Blanco; the Board therefore had authority to do what it did.
• Ad Interim Appointment: Both the Charter and the Revised Code provide that the President’s function is only to nominate, not to extend an appointment even ad interim, while the Board’s power is to elect or appoint, not merely to confirm. The May 26, 1970 ad interim appointment was expressly subject to the approval of the Board and to being sooner terminated. The Board did not elect Blanco on July 9, 1970 and declared the appointment terminated as of that day. The prayer to be recognized under the ad interim appointment had also become moot because its tenure had expired, and the SC doubted that such an appointment was authorized.

• Election of Dean by the Board of Regents — Under Section 10 of the U.P. Charter and Article 78 of the Revised Code, the Dean is elected by the Board of Regents from the faculty on nomination by the University President. The President only nominates; the Board elects or appoints. Applied: Blanco’s ad interim appointment by the President did not make her Dean, and the Board did not elect her.
• Abstention as Acquiescence — An abstention may be counted as an affirmative vote only insofar as it may be construed as acquiescence in the action of those who vote affirmatively; the presumption is prima facie and is rebutted by clear evidence to the contrary. Applied: the four abstentions were not counted for Blanco because the record showed the Personnel Committee opposed her appointment and Regent Virata was not ready to decide.
• Reconsideration by a Deliberative Body — A deliberative body may reconsider its action before adjournment and before any title or right has vested. Applied: the Board validly cancelled the result of the voting and terminated Blanco’s ad interim appointment in the same July 9, 1970 meeting.
• Ad Interim Appointment Subject to Board Approval — An ad interim appointment by the University President is subject to the approval of the Board of Regents and may be terminated when the Board does not confirm it. Applied: Blanco’s May 26, 1970 ad interim appointment was terminated when the Board did not confirm it.

• “The votes of abstention, viewed in their setting, can in no way be construed as votes for confirmation of the appointment.” — The SC applied this to the four abstentions in the July 9, 1970 vote, rejecting Blanco’s theory that they should count as affirmative.
• “All arguments on the legal question of how an abstention should be treated, all authorities cited in support of one or the other position, become academic and purposeless in the face of the fact that respondent Dr. Blanco was clearly not the choice of a majority of the members of the Board of Regents, as unequivocally demonstrated by the transcript of the proceedings.” — The SC treated the general abstention debate as academic because the record showed Blanco lacked majority support.
• “It cannot be seriously argued that the Board had no authority to do what it did: the meeting had not yet been adjourned, the subject of the deliberations had not yet been closed, and as in the case of any deliberative body the Board had the right to reconsider its action.” — The SC upheld the Board’s authority to reconsider and cancel the vote in the same meeting.
• “In other words the President’s function is only to nominate, not to extend an appointment, even if only ad interim; and the power of the Board of Regents is not merely to confirm, but to elect or appoint.” — The SC distinguished the President’s nominating power from the Board’s power to elect or appoint, rejecting any claim based solely on the ad interim appointment.

• Section 10, Act No. 1870 (U.P. Charter) — Provides that the Dean is elected from the faculty by the Board of Regents on nomination by the President. Applied to hold that President Lopez could only nominate Blanco; his ad interim appointment did not make her Dean, and the Board did not elect her.
• Article 78, Revised Code of the University of the Philippines — Contains the same rule that the Dean is elected by the Board of Regents from the faculty on nomination by the President. Applied together with Section 10 to reject Blanco’s claim to the Deanship.
• Article 79, Revised Code of the University of the Philippines — Cited by Blanco for a three-year tenure. The SC held the prayer for a three-year term was not in order because Blanco had not been elected Dean.

• Justice Barredo (Concurring) — He reserved opinion on whether the Chairman’s ruling that “the vote is not a majority” was correct; he questioned the Secretary’s counting his own negative vote and the President voting, and was not prepared to say the abstentions could not be interpreted as leaving the matter to the voting members. He agreed with the majority that the approval without dissent of Regent Agbayani’s motion terminated Blanco’s second ad interim appointment, so she ceased to be Dean on July 9, 1970.