Office of the Ombudsman vs. Evangelista

Under Section 24 of R.A. No. 6770, the Ombudsman may issue a preventive suspension order without prior notice and hearing if, in the Ombudsman’s judgment, the evidence of guilt is strong and any of the three conditions in Section 24 is present. An elective official’s re-election renders moot the administrative liability for misconduct committed during a previous term, though criminal liability may still be pursued.

Respondents Ricardo Evangelista, Concepcion Melican, and Grace Limos were the mayor, municipal treasurer, and municipal accountant of Aguilar, Pangasinan. Priscilla Villanueva was the Co-Chair of the Local School Board of Aguilar. The controversy concerned the Special Education Fund (SEF) and the Ombudsman’s authority under R.A. No. 6770 to preventively suspend public officers pending investigation. Section 24 of R.A. No. 6770 defines the requisites for preventive suspension, while Section 26 governs the Ombudsman’s inquiries.

Respondents Ricardo Evangelista, Concepcion Melican, and Grace Limos were, respectively, the mayor, municipal treasurer, and municipal accountant of Aguilar, Pangasinan. Priscilla Villanueva was the Co-Chair of the Local School Board of Aguilar. The Special Education Fund (SEF) of the municipality became the subject of an administrative complaint against the three local officials.

On November 13, 2006, Villanueva filed an affidavit-complaint with the Office of the Ombudsman. She accused Evangelista, Melican, and Limos of having misappropriated the SEF by using it to purchase speech kit tapes and textbooks without the approval of the Local School Board. She further alleged that the speech kit tapes and textbooks were not received by the intended recipients, citing attached certifications of principals and head teachers of different public schools within Aguilar debunking receipt. Villanueva specially pleaded that the respondents be preventively suspended.

On January 9, 2007, the Ombudsman issued an order placing the three respondents under preventive suspension for four months without pay during the pendency of the case. The order found that the proofs submitted by Villanueva showed strong evidence of guilt; that the acts imputed, if duly proven, would constitute grave misconduct and dishonesty; and that the respondents’ continued stay in office would prejudice the fair and independent disposition of the case. The order was declared immediately executory under Section 27(1) of R.A. No. 6770, and the Secretary of the Interior and Local Government and the Department of Finance were directed to implement it. The suspension order was served on Evangelista on January 13, 2007, and on Limos two days later, or on January 15, 2007.

In issuing the preventive suspension order, the Ombudsman considered, among other records, Local Budget Preparation Form No. 151 indicating the balance of the SEF; records from the office of the municipal accountant; a letter dated December 13, 2004 from Villanueva to the Municipal Treasurer requesting clarification of the SEF balance; the status of appropriation, allotment, and obligation of the SEF as of December 31, 2003; the SEF statement of income and expenses for 2003; the letter of the municipal accountant to Mayor Evangelista enumerating disbursements charged to the SEF, including disbursements for speech kits and textbooks for 2003-2005; and certifications dated February 11, 2005 issued by principals and head teachers stating that they did not receive speech kits or textbooks for 2004-2005. The SEF was reduced to ₱343,763.30 from ₱783,937.60 without sufficient justification, as revealed by the Status of Appropriation, Allotment and Obligation and the Statement of Income and Expense, both certified as correct by Limos. The Ombudsman also noted that no disbursement was authorized by the local school board.

On January 17, 2007, the respondents filed a petition for certiorari with the Court of Appeals assailing the Ombudsman’s order. They claimed that they had been denied due process because they were never furnished a copy of Villanueva’s complaint; that the unsubstantiated allegations of Villanueva did not constitute sufficient evidence to suspend them; and that the order had been hastily issued. The Court of Appeals observed that even a cursory reading of the assailed order showed that the requirements of R.A. No. 6770 were not complied with, pointing out that under Section 26(2) the Ombudsman was required to inform the accused of the charges, yet the respondents learned of the charges only upon receipt of the suspension order. It also found that the documents which could possibly be tampered with were beyond the respondents’ reach because they were in the custody of the Commission on Audit, and that there was haste because the Ombudsman signed the order prior to the Deputy Ombudsman’s recommendation of approval.

Evangelista was re-elected and proclaimed during the May 2007 elections, as evidenced by the certificate of canvass of votes and proclamation of winning candidates for the Municipality of Aguilar, Pangasinan.

• Compliance with Section 24: The Ombudsman claimed that the preventive suspension order complied with the two requirements of Section 24 of R.A. No. 6770: the evidence of guilt was strong, and the charge involved dishonesty, oppression, or grave misconduct or neglect in the performance of duty.
• Scope of Certiorari: The Ombudsman asserted that the function of a petition for certiorari is to correct errors of jurisdiction and cannot include a review of the Ombudsman’s factual findings.
• Inapplicability of Section 26(2): The Ombudsman argued that the Court of Appeals’ reliance on Section 26(2) of R.A. No. 6770 was misplaced because a preventive suspension order need only satisfy Section 24 of the same law.
• Prior Jurisprudence: The Ombudsman maintained that ample jurisprudence supports the legality of a preventive suspension order issued even prior to the hearing of the charges.

• Due Process: Respondents reiterated that they were denied due process when they were not informed of the charges against them prior to their preventive suspension, and because they were never furnished a copy of Villanueva’s complaint.
• Insufficient Evidence and Haste: Respondents alleged that the unsubstantiated allegations of Villanueva did not constitute sufficient evidence to suspend them and that the order had been hastily issued.
• Baseless Charges: Respondents claimed that the irregularities concerning the SEF imputed to them were baseless.
• Bogus Special Prosecutor’s Order: Respondents claimed that Villanueva had effected the concoction and circulation of a bogus Special Prosecutor’s order finding them guilty of grave misconduct and dishonesty, as well as recommending their dismissal from service.
• Mootness by Re-election: Respondents asserted that the re-election of Evangelista had rendered the preventive suspension order moot and academic following the doctrine in Mayor Garcia vs. Hon. Mojica.

• Procedural Remedy: Whether a petition for certiorari under Rule 65 is the proper remedy to challenge a Court of Appeals decision reversing the Ombudsman in an administrative case, and if not, whether it may be treated as a petition for review under Rule 45.
• Prior Notice and Hearing: Whether a preventive suspension order under Section 24 of R.A. No. 6770 requires prior notice and hearing or compliance with Section 26(2) of the same law.
• Requisites for Preventive Suspension: Whether the Ombudsman complied with the requisites of Section 24 of R.A. No. 6770 in issuing the preventive suspension order.
• Risk of Tampering: Whether the preventive suspension order is invalid because the documents that could be tampered with were in the custody of the Commission on Audit.
• Undue Haste: Whether the Ombudsman’s signing of the preventive suspension order before the Deputy Ombudsman’s recommendation rendered the order invalid.
• Mootness by Re-election: Whether the re-election of respondent Evangelista rendered the preventive suspension order moot and academic.

• Procedural Remedy: Generally no. The proper remedy is a petition for review on certiorari under Rule 45, but the Court treated the petition for certiorari as a petition for review to avert a miscarriage of justice.
• Prior Notice and Hearing: No. Section 24 of R.A. No. 6770 does not require prior notice or hearing; the Court of Appeals erred in requiring compliance with Section 26(2).
• Requisites for Preventive Suspension: Yes. The Ombudsman found strong evidence of guilt, and the charges involved dishonesty and grave misconduct and warranted removal from service.
• Risk of Tampering: No. The location of the documents in the Commission on Audit’s custody does not invalidate the preventive suspension; the prosecution must be allowed to prepare free from interference.
• Undue Haste: No. The Deputy Ombudsman’s recommendation is not a condition sine qua non for the Ombudsman to issue a preventive suspension order under Section 24.
• Mootness by Re-election: Yes as to Evangelista. His re-election rendered the preventive suspension order moot and academic as to him; the order remains as to Limos and Melican.

• Procedural Remedy: Generally, to challenge appellate court decisions reversing rulings of the Ombudsman in administrative cases, the special civil action for certiorari under Rule 65 is not the appropriate recourse. Because the Ombudsman assailed the appellate court’s misapplication of the law, the proper remedy was a petition for review on certiorari under Rule 45; errors of judgment committed by the appellate court are not correctible by a petition for certiorari. Respondents, however, failed to raise this lapse. The Court opted to adopt a liberal construction of the Rules of Court, treating the petition for certiorari as a petition for review to avert a miscarriage of justice, especially since the petition was filed on April 13, 2007, exactly 15 days after the Ombudsman received the decision on March 29, 2007, within the period prescribed by Section 2, Rule 45.

• Prior Notice and Hearing: Section 24 of R.A. No. 6770 defines the authority of the Ombudsman to preventively suspend government officials and employees. As early as 1995, the Court ruled in Lastimosa vs. Vasquez and Hagad vs. Gozo-Dadole that neither prior notice nor a hearing is required for the issuance of a preventive suspension order. The doctrine is anchored on the explicit text of Section 24. The Court of Appeals erroneously juxtaposed the requisites in Section 26, governing inquiries by the Ombudsman, with those in Section 24. Section 24 does not require that notice of the charges against the accused must precede an order meting out preventive suspension, and the Ombudsman is not required to furnish the respondent a copy of the complaint prior to ordering preventive suspension. The requisites for preventive suspension are clearly contained in Section 24, and the appellate court cannot alter them by insisting on compliance with Section 26.

• Requisites for Preventive Suspension: Under Section 24, two requisites must concur. First, in the judgment of the Ombudsman or the Deputy Ombudsman, the evidence of guilt is strong. Second, any of three conditions must be present: (1) the offense charged involves dishonesty, oppression, grave misconduct, or neglect in the performance of duty; (2) the charge would warrant removal from the service; or (3) the respondent’s continued stay in office may prejudice the case filed against him. There was no showing of grave abuse of discretion in the Ombudsman’s finding that the evidence was strong. The Ombudsman considered the Local Budget Preparation Form No. 151, records from the municipal accountant’s office, Villanueva’s December 13, 2004 letter, the status of appropriation, allotment and obligation of the SEF as of December 31, 2003, the SEF statement of income and expenses for 2003, the municipal accountant’s letter to Mayor Evangelista enumerating disbursements including speech kits and textbooks for 2003-2005, and certifications dated February 11, 2005 from principals and head teachers that they did not receive speech kits or textbooks for 2004-2005. The SEF was reduced to ₱343,763.30 from ₱783,937.60 without sufficient justification, as shown by documents certified correct by Limos. The certifications of numerous head teachers and principals were strong evidence of dishonesty and grave misconduct, bolstered by the absence of authorization from the local school board. The second requisite was satisfied by two circumstances: the offense involved dishonesty, oppression, or grave misconduct or neglect in the performance of duty, and the charge would warrant removal from the service. Dishonesty is intentionally making a false statement in a material fact. A mayor may be removed from office for dishonesty, oppression, gross negligence, or dereliction of duty under Section 60(c) of the Local Government Code. Melican and Limos, as civil service members under Section 22, Rule XIV of the Omnibus Rules on Civil Service, could be dismissed for dishonesty even as a first offense. The penalty of dismissal is reiterated in Civil Service Memorandum Circular No. 30, series of 1989, and Civil Service Memorandum Circular No. 19, series of 1999, and carries cancellation of civil service eligibility, forfeiture of leave credits and retirement benefits, and disqualification from government employment.

• Risk of Tampering: The Court of Appeals’ stance that there was no longer any reason for preventive suspension because the pertinent documents were with the Commission on Audit has no merit. The Court found a similar argument in Bunye vs. Escarreal devoid of merit and reiterated that the prosecution must be given the opportunity to gather and prepare the facts for trial under conditions ensuring non-intervention and non-interference from the accused’s camp. Similar to Section 13 of Republic Act No. 3019, Section 24 of R.A. No. 6770 emphasizes the principle that a public office is a public trust. Part of this principle is the presumption that unless the public officer is suspended, he may frustrate his prosecution or commit further acts of malfeasance or both. The Ombudsman has full discretion to select which evidence it will gather and present, free from interference.

• Undue Haste: There was no undue haste on the Ombudsman’s part in issuing the preventive suspension order. The fact that the Ombudsman signed the order prior to the Deputy Ombudsman’s recommendation does not affect its validity. Section 24 of R.A. No. 6770 does not make the recommendation of the Deputy Ombudsman a condition sine qua non for the Ombudsman to issue a preventive suspension order. A preventive suspension is not a penalty, and such an order when issued by the Ombudsman is accorded the highest deference unless it violates Section 24.

• Mootness by Re-election: The preventive suspension order insofar as Mayor Evangelista was concerned was rendered moot and academic. He was re-elected and proclaimed during the May 2007 elections, as evidenced by the certificate of canvass of votes and proclamation of winning candidates for the Municipality of Aguilar, Pangasinan. The Court has consistently ruled that elective officials may not be held administratively liable for misconduct committed during a previous term of office. The rationale is that the electorate is assumed to have returned the official to power with full knowledge of past misconduct and in fact condoned it. This forgiveness applies only to administrative liability; the State may still pursue the official in a criminal case. Thus, the Court of Appeals’ decision was affirmed as to Evangelista but reversed as to Limos and Melican.

• Ombudsman’s Preventive Suspension under Section 24, R.A. No. 6770 — The Ombudsman or Deputy Ombudsman may preventively suspend any officer or employee under his authority pending investigation if, in his judgment, the evidence of guilt is strong and any of the following conditions is present: (a) the charge involves dishonesty, oppression, grave misconduct, or neglect in the performance of duty; (b) the charge would warrant removal from the service; or (c) the respondent’s continued stay in office may prejudice the case filed against him. The Court applied this provision to uphold the suspension of Limos and Melican, finding strong evidence and two qualifying circumstances.
• No Prior Notice or Hearing for Preventive Suspension — A preventive suspension order under Section 24 of R.A. No. 6770 does not require prior notice or hearing. The Court relied on Lastimosa vs. Vasquez and Hagad vs. Gozo-Dadole and held that the Court of Appeals erred in requiring compliance with Section 26(2) of the same law.
• Preventive Suspension Is Not a Penalty — Preventive suspension is a preventive measure, not a punishment or penalty for misconduct in office. It is accorded the highest deference unless it violates Section 24 of R.A. No. 6770. The Deputy Ombudsman’s recommendation is not a condition sine qua non for its issuance.
• Public Office Is a Public Trust; Presumption of Frustration of Prosecution — Section 24 of R.A. No. 6770, similar to Section 13 of R.A. No. 3019, emphasizes that public office is a public trust. Unless the public officer is suspended, he may frustrate his prosecution or commit further acts of malfeasance or both. The prosecution must be allowed to gather and prepare facts free from interference, and the Ombudsman has full discretion to select evidence.
• Re-election as Condonation of Administrative Liability — Elective officials may not be held administratively liable for misconduct committed during a previous term of office because the electorate is presumed to have returned them to power with full knowledge of past misconduct and to have condoned it. This rule applies only to administrative liability; criminal liability may still be pursued. The Court applied this to Evangelista, rendering his preventive suspension moot and academic.
• Liberal Construction of Procedural Rules — The Court may treat a petition for certiorari under Rule 65 as a petition for review under Rule 45 to avert a miscarriage of justice, especially where the petition was filed within the 15-day period prescribed for a petition for review. The Court applied this to resolve the procedural defect in the Ombudsman’s petition.
• Dishonesty — Dishonesty is intentionally making a false statement in any material fact. The Court found strong evidence of dishonesty based on the Ombudsman’s findings that the respondents made false statements as to the SEF status and the purchase of speech kits and textbooks.

• "As early as 1995, this Court ruled in Lastimosa v. Vasquez and Hagad v. Gozo-Dadole, that neither prior notice nor a hearing is required for the issuance of a preventive suspension order." — This states the controlling rule on due process for preventive suspension, which the Court used to reverse the Court of Appeals’ requirement of prior notice.
• "Under Section 24, two requisites must concur to render the preventive suspension order valid. The first requisite is unique and can be satisfied in only one way. It is that in the judgment of the Ombudsman or the Deputy Ombudsman, the evidence of guilt is strong. The second requisite, however, may be met in three (3) different ways, to wit: (1) that the offense charged involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (2) the charge would warrant removal from the service; or (3) the respondent’s continued stay in office may prejudice the case filed against him." — This is the canonical formulation of the requisites for preventive suspension under Section 24 of R.A. No. 6770.
• "A preventive suspension is not a penalty and such an order when issued by the Ombudsman is accorded the highest deference unless the order violates Section 24 of R.A. No. 6770." — This defines the nature of preventive suspension and the standard of review applied to the Ombudsman’s order.
• "This Court has consistently ruled that elective officials may not be held administratively liable for misconduct committed during a previous term of office. The rationale for this rule is that it is assumed that the electorate returned the official to power with full knowledge of past misconduct and in fact condoned it." — This states the re-election condonation rule applied to Evangelista, rendering his preventive suspension moot and academic.

• Lastimosa vs. Vasquez, 313 Phil. 358 (1995) — Held that neither prior notice nor a hearing is required for the issuance of a preventive suspension order; relied upon to reject the Court of Appeals’ due process ruling.
• Hagad vs. Gozo-Dadole, 321 Phil. 604 (1995) — Same ruling as Lastimosa; cited together to establish the settled doctrine on preventive suspension.
• Bunye vs. Escarreal, G.R. No. 110216, September 10, 1993, 226 SCRA 332 — The Court found a similar argument—that suspension was unnecessary because documents could not be tampered with—devoid of merit; reiterated that the prosecution must be allowed to prepare free from interference.
• Mayor Garcia vs. Hon. Mojica, 372 Phil. 892 (1999) — Cited in relation to the rule that re-election renders moot administrative liability for misconduct committed during a previous term; applied to Evangelista.
• Quimbo vs. Gervacio, G.R. No. 155620, August 9, 2005, 466 SCRA 277 — Cited for the rule that preventive suspension is not a penalty and is accorded the highest deference unless it violates Section 24 of R.A. No. 6770.
• Sevilla vs. Gocon, 467 Phil. 512, 521 (2004) — Cited for the definition of dishonesty as intentionally making a false statement in any material fact.
• Pascual vs. Provincial Board, 106 Phil. 466 (1959) — Cited among cases supporting the rule that elective officials may not be held administratively liable for misconduct committed during a previous term.

• Section 24, R.A. No. 6770 — Defines the Ombudsman’s authority to preventively suspend; requires strong evidence of guilt and at least one of three conditions. The Court applied it to uphold the suspension of Limos and Melican.
• Section 26(2), R.A. No. 6770 — Requires the Ombudsman to inform the accused of the charges in inquiries. The Court of Appeals relied on it, but the Court held it does not apply to preventive suspension under Section 24.
• Section 27(1), R.A. No. 6770 — Provides that the Ombudsman’s order is immediately executory; cited in the preventive suspension order.
• Section 60(c), Local Government Code — Provides that a mayor may be removed from office for dishonesty, oppression, gross negligence, or dereliction of duty; cited to show the charge warranted removal.
• Section 22, Rule XIV, Omnibus Rules on Civil Service — Provides that dishonesty is a grave offense punishable with dismissal even as a first offense; applied to Melican and Limos.
• Civil Service Memorandum Circular No. 30, series of 1989, and No. 19, series of 1999 — Reiterate the penalty of dismissal and its accessory penalties; cited to show the charge warranted removal.
• Section 13, R.A. No. 3019 — Cited as similar to Section 24 of R.A. No. 6770 in emphasizing that public office is a public trust.
• Section 2, Rule 45, Rules of Court — Prescribes the 15-day period for a petition for review; the Court considered the Ombudsman’s petition filed within this period in treating it as a petition for review.
• Rule 1, Section 6, Rules of Court — Provides for liberal construction of the Rules; invoked to treat the petition for certiorari as a petition for review.
• Section 24, Rule XIV, Omnibus Rules Implementing Book V of the Administrative Code of 1987 — States that preventive suspension is not a punishment or penalty but a preventive measure; cited in the discussion of preventive suspension.

Leonardo A. Quisumbing (Chairperson), Conchita Carpio Morales, Presbitero J. Velasco, Jr., and Arturo D. Brion concurred. The decision also carries a certification signed by Leonardo A. Quisumbing as Acting Chief Justice.