Tetangco vs. Ombudsman

The Ombudsman’s dismissal of a complaint for violation of Article 220 of the Revised Penal Code is not reversible absent grave abuse of discretion; no probable cause for technical malversation exists where the complaint fails to allege that public funds were diverted from the purpose for which they were originally appropriated by law or ordinance.

Amando Tetangco was the complainant before the Office of the Ombudsman against Mayor Jose L. Atienza, Jr. The Ombudsman exercises investigatory and prosecutory powers, and its Rules of Procedure permit the investigating officer to recommend outright dismissal of a complaint devoid of merit. Article 220 of the Revised Penal Code, also known as technical malversation, penalizes a public officer who applies public funds or property under his administration to a public use other than that for which they were appropriated by law or ordinance.

Amando Tetangco filed a Complaint before the Office of the Ombudsman against Mayor Jose L. Atienza, Jr. of the City of Manila. Tetangco alleged that on January 26, 2001, Mayor Atienza gave P3,000 cash financial assistance to the chairman and P1,000 to each tanod of Barangay 105, Zone 8, District I. Tetangco further alleged that on March 5, 2001, Mayor Atienza refunded P20,000, the total amount of the financial assistance, from the City of Manila when such disbursement was not justified as a lawful expense.

In his Counter-Affidavit, Mayor Atienza denied the allegations and sought dismissal of the Complaint for lack of jurisdiction and for forum-shopping. He asserted that it was the Commission on Elections, not the Ombudsman, that had jurisdiction over the case and that the same case had previously been filed before the COMELEC. He also noted that the Complaint had no verification and certificate of non-forum shopping. The mayor maintained that the expenses were legal and justified, supported by disbursement vouchers, and had passed prior audit and accounting.

The Investigating Officer recommended dismissal of the Complaint for lack of evidence and merit. The Ombudsman adopted the recommendation. The Office of the Ombudsman, through its Over-all Deputy Ombudsman, likewise denied petitioner's motion for reconsideration.

The Ombudsman found no evidence to prove probable cause. The Complaint merely alleged that the disbursement for financial assistance was neither authorized by law nor justified as a lawful expense. Complainant did not cite any law or ordinance that provided for an original appropriation of the amount used for the financial assistance and that it was diverted from the appropriation it was intended for.

• Illegal Disbursement / Lack of Authorization: Petitioner insisted that Mayor Atienza illegally disbursed public funds when he gave financial assistance to the chairman and tanods of Barangay 105, since the disbursement was not authorized by law or ordinance, which the Ombudsman did not consider when it dismissed the Complaint.
• Capricious Dismissal / Evidence of Graft: Petitioner argued that the dismissal by the Ombudsman was capricious since the evidence on record was clear that the mayor was guilty of graft and corruption.
• Prima Facie Case and Probable Cause: Petitioner maintained that the Ombudsman committed grave abuse of discretion in dismissing the criminal charge despite the existence of a prima facie case and probable cause to indict Mayor Atienza for violation of Article 220 of the RPC, or at the very least for violation of Section 3(e) of R.A. No. 3019.

• Ombudsman — No Grave Abuse of Discretion / No Probable Cause: The Ombudsman, through the Solicitor General, contended that it did not abuse its discretion and that there was no probable cause against private respondent for violation of Article 220 of the RPC.
• Mayor Atienza — No Grave Abuse of Discretion: Mayor Atienza averred that there was no grave abuse of discretion on the part of the Ombudsman when it dismissed the Complaint.
• Jurisdiction and Forum-Shopping: In his Counter-Affidavit, Mayor Atienza denied the allegations and sought dismissal for lack of jurisdiction and for forum-shopping, asserting that the COMELEC, not the Ombudsman, had jurisdiction and that the same case had previously been filed before the COMELEC; the Complaint also lacked verification and a certificate of non-forum shopping.
• Legality of Expenses: Mayor Atienza maintained that the expenses were legal and justified, supported by disbursement vouchers, and had passed prior audit and accounting.

• Grave Abuse of Discretion in Dismissing Complaint: Whether the Ombudsman committed grave abuse of discretion in dismissing the criminal charge against Mayor Atienza for violation of Article 220 of the RPC despite the alleged existence of a prima facie case and probable cause to indict him for the crime charged, or at the very least for violation of Section 3(e) of R.A. No. 3019.

• Grave Abuse of Discretion in Dismissing Complaint: No. The Ombudsman did not commit grave abuse of discretion; it found no evidence to prove probable cause, and the Complaint failed to allege diversion of public funds from the purpose for which they were originally appropriated by law or ordinance, an essential element of technical malversation.

• Grave Abuse of Discretion in Dismissing Complaint: The settled policy is non-interference with the Ombudsman's determination of probable cause except upon grave abuse of discretion. Grave abuse exists where power is exercised in an arbitrary, capricious, whimsical, or despotic manner by reason of passion or personal hostility so patent and gross as to amount to evasion of positive duty or virtual refusal to perform a duty enjoined by law. Here, the Ombudsman found no evidence to prove probable cause. Probable cause requires a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious man's belief that the accused is guilty. The Complaint merely alleged that the disbursement for financial assistance was neither authorized by law nor justified as a lawful expense; complainant did not cite any law or ordinance providing for an original appropriation of the amount used and that it was diverted from the appropriation it was intended for. Article 220 of the RPC, or technical malversation, requires (1) an accountable public officer, (2) application of public funds or property under his administration to some public use, and (3) that the public use is different from the purpose for which the funds or property were originally appropriated by law or ordinance. The third element was absent. Under Section 2, Rule II of the Rules of Procedure of the Office of the Ombudsman, the investigating officer may recommend outright dismissal of a complaint devoid of merit, which is what happened. Thus, no abuse of discretion, much less grave abuse, was attributable to the Ombudsman.

• Non-interference with the Ombudsman's probable cause determination — The Court will not ordinarily interfere with the Ombudsman's determination of whether probable cause exists except when grave abuse of discretion is committed. Applied: the Ombudsman's dismissal was upheld because no grave abuse attended it.
• Grave abuse of discretion — Defined as exercise of power in an arbitrary, capricious, whimsical, or despotic manner by reason of passion or personal hostility so patent and gross as to amount to evasion of positive duty or virtual refusal to perform a duty enjoined by, or in contemplation of, law. Applied: the Ombudsman's action was not characterized as such.
• Probable cause — A reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense charged. Applied: the Ombudsman found no evidence to prove probable cause.
• Technical malversation under Article 220, Revised Penal Code — Elements: (1) offender is an accountable public officer; (2) he applies public funds or property under his administration to some public use; and (3) the public use is different from the purpose for which the funds or property were originally appropriated by law or ordinance. For technical malversation to exist, public funds or properties must be diverted to a public use other than that provided by law or ordinance; there must be a diversion from the purpose for which they were originally appropriated. Applied: the third element was absent because the complaint did not cite any law or ordinance providing the original appropriation or showing diversion.
• Outright dismissal of meritless complaints under the Ombudsman Rules — Under Section 2, Rule II of the Rules of Procedure of the Office of the Ombudsman, the investigating officer may recommend outright dismissal of a complaint if it is devoid of merit. Applied: the Ombudsman properly dismissed the complaint after the investigating officer found it lacking in evidence and merit.

• "It is well-settled that the Court will not ordinarily interfere with the Ombudsman’s determination of whether or not probable cause exists except when it commits grave abuse of discretion." — States the standard of review governing the Court's interference with the Ombudsman's probable cause determination.
• "Grave abuse of discretion exists where a power is exercised in an arbitrary, capricious, whimsical or despotic manner by reason of passion or personal hostility so patent and gross as to amount to evasion of positive duty or virtual refusal to perform a duty enjoined by, or in contemplation of law." — Defines the threshold required to overturn the Ombudsman's action.
• "Probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged." — Defines probable cause, which the Ombudsman found absent.
• "It is clear that for technical malversation to exist, it is necessary that public funds or properties had been diverted to any public use other than that provided for by law or ordinance." — States the essential element of diversion that was missing in the complaint.

• Roxas vs. Vasquez, G.R. No. 114944, 19 June 2001, 358 SCRA 636, 646 — Cited for the consistent policy of non-interference in the Ombudsman's determination of probable cause absent grave abuse, and quoted in the decision.
• Esquivel vs. Ombudsman, G.R. No. 137237, 17 September 2002, 389 SCRA 143, 151 — Cited for the rule that the Court will not ordinarily interfere with the Ombudsman's probable cause determination except upon grave abuse of discretion.
• Baylon vs. Office of the Ombudsman, G.R. No. 142738, 14 December 2001, 372 SCRA 437, 449 — Cited for the definition of grave abuse of discretion and, per the decision's footnote, for the definition of probable cause.
• Parungao vs. Sandiganbayan, G.R. No. 96025, 15 May 1991, 197 SCRA 173, 180-181 — Cited for the elements of technical malversation and the necessity of diversion of public funds to a public use other than that provided by law or ordinance.
• People vs. Montemayor and Ducusin, No. L-17449, 30 August 1962, 116 Phil. 78, 81 — Cited for the rule that the crime requires diversion of funds from the purpose for which they were originally appropriated by law or ordinance.
• Knecht vs. Hon. Desierto, G.R. No. 121916, 26 June 1998, 353 Phil. 494, 502 — Cited for the Ombudsman's authority to dismiss outright a complaint devoid of merit under its Rules of Procedure.

• Article 220, Revised Penal Code — Illegal use of public funds or property. It penalizes a public officer who applies public funds or property under his administration to a public use other than that for which they were appropriated by law or ordinance. The Court applied its elements and found the third element absent.
• Section 2, Rule II, Rules of Procedure of the Office of the Ombudsman (Administrative Order No. 07) — Evaluation. Upon evaluating the complaint, the investigating officer shall recommend whether it may be dismissed outright for want of palpable merit, among other actions. The Court noted that the Ombudsman may dismiss outright a complaint devoid of merit, as happened here.

Antonio T. Carpio, Conchita Carpio Morales, and Dante O. Tinga.