SECOND DIVISION
G.R. No. 242005, June 26, 2019
RAMIL A. BAGAOISAN, M.D., CHIEF OF HOSPITAL I, CORTES MUNICIPAL HOSPITAL, CORTES, SURIGAO DEL SUR, PETITIONER, v. OFFICE OF THE OMBUDSMAN FOR MINDANAO, DAVAO CITY, RESPONDENT.
D E C I S I O N
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated February 28, 2018 and the Resolution3 dated August 23, 2018 rendered by the Court of Appeals (CA) in CA-G.R. SP No. 08117-MIN, which affirmed in toto the Decision4 dated December 5, 2016 and the Order5 dated May 2, 2017 of the Office of the Ombudsman (Ombudsman) in OMB-M-A-16-0176 finding petitioner Ramil A. Bagaoisan, M.D. (petitioner) guilty of Grave Misconduct and meting upon him the penalty of dismissal from service, with all its accessory penalties.
Section 59. Nepotism. — (1) All appointments in the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited.Under the foregoing definition, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following: (a) appointing authority; (b) recommending authority; (c) chief of the bureau or office; and (d) person exercising immediate supervision over the appointee.32
As used in this Section, the word "relative" and members of the family referred to are those related within the third degree either of consanguinity or of affinity.
(2) The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines: Provided, however, That in each particular instance full report of such appointment shall be made to the Commission.
x x x x (Emphases supplied)
Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named.35In Section 13 (c), Rule IV of Memorandum Circular No. 14,36 series of 2018 of the Civil Service Commission (CSC), "designation" was defined as follows:
Jurisprudence has it that for the purpose of determining nepotism, there should be no distinction between appointment and designation;37 otherwise, the prohibition on nepotism would be meaningless and toothless. Any appointing authority may circumvent it by merely designating, and not appointing, a relative within the prohibited degree to a vacant position in the career service. Indeed, what cannot be done directly cannot be done indirectly.38RULE IV
EMPLOYMENT STATUS, NATURE OF APPOINTMENT AND OTHER HUMAN RESOURCES
Section 13. Other Human Resource Actions. x x x x
c. Designation - movement that involves an imposition of additional and/or higher duties to be performed by a public official/employee which is temporary and can be terminated anytime at the pleasure of the appointing authority officer/authority. Designation may involve the performance of duties of another position on a concurrent capacity or on full-time basis. A designation in an acting capacity entails not only the exercise of the ministerial functions attached to the position but also the exercise of discretion since the person designated is deemed to be the incumbent of the position.
x x x x
A textual examination of Section 59 at once reveals that the prohibition was cast in comprehensive and unqualified terms. Firstly, it explicitly covers "all appointments," without seeking to make any distinction between differing kinds or types of appointments. Secondly, Section 59 covers all appointments to the national, provincial, city and municipal governments, as well as any branch or instrumentality thereof and all government owned or controlled corporations. Thirdly, there is a list of exceptions set out in Section 59 itself, but it is a short list:Based on the foregoing disquisitions, it is of no consequence that petitioner appointed/designated Nelita to non-plantilla positions in the Cortes Municipal Hospital or that he merely "designated" her to perform "additional functions," as opposed to an existing government position. Neither is it material that Nelita did not receive compensation as a result of said appointments nor that petitioner acted in good faith in issuing the Office Orders creating the said positions. The Ombudsman pointed out that it was rather dubious why petitioner had to designate his wife to perform additional functions notwithstanding its non-existence in the plantilla;51 indeed, there is no reason why said additional functions cannot be performed by other qualified employees who are not relatives of petitioner and thus, insuring his objectivity. It bears to stress that the prohibition applies without regard to the actual merits of the proposed appointee and to the good intentions of the appointing or recommending authority, and that the prohibition against nepotism in appointments, whether original or promotional, is not intended by the legislative authority to penalize faithful service.52
(a) persons employed in a confidential capacity;
(b) teachers;
(c) physicians; and
(d) members of the Armed Forces of the Philippines.
The list has not been added to or subtracted from for the past thirty (30) years. The list does not contain words like "and other similar positions." Thus, the list appears to us to be a closed one, at least closed until lengthened or shortened by Congress.
x x x x
The purpose of Section 59 which shines through the comprehensive and unqualified language in which it was cast and has remained for decades, is precisely to take out of the discretion of the appointing and recommending authority the matter of appointing or recommending for appointment a relative. In other words, Section 59 insures the objectivity of the appointing or recommending official by preventing that objectivity from being in fact tested. The importance of this statutory objective is difficult to overstress in the culture in which we live and work in the Philippines, where family bonds remain, in general, compelling and cohesive.
The conclusion we reach is that Section 59, Book V, E.O. No. 292 means exactly what it says in plain and ordinary language: it refers to "all appointments" whether original or promotional in nature. The public policy embodied in Section 59 is clearly fundamental in importance, and the Court has neither authority nor inclination to dilute that important public policy by introducing a qualification here or a distinction there.50
Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel. In Debulgado, we stressed that "[t]he basic purpose or objective of the prohibition against nepotism also strongly indicates that the prohibition was intended to be a comprehensive one." "The Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and comprehensive." If not within the exceptions, it is a form of corruption that must be nipped in the bud or abated whenever or wherever it raises its ugly head. As we said in an earlier case "what we need now is not only to punish the wrongdoers or reward the 'outstanding' civil servants, but also to plug the hidden gaps and potholes of corruption as well as to insist on strict compliance with existing legal procedures in order to abate any occasion for graft or circumvention of the law."55In light of the foregoing, the Court finds that petitioner's actions constitute Grave Misconduct.
Endnotes:
1Rollo, pp. 3-25.
2 Id. at 33-36. Penned by Associate Justice Oscar V. Badelles, with Associate Justices Romulo V. Borja and Trta Marilyn Payoyo-Villordon, concurring.
3 Id. at 38-40.
4 Id. at 58-63. Approved by Deputy Ombudsman for Mindanao Rodolfo M. Elman.
5 Id. at 83-86.
6 See id. at 46-47, 51, and 58.
7 Id. at 43.
8 See Nelita's Panunumpa sa Katungkulan dated January 9, 1998; id. at 42.
9 Id. at 44.
10 See id. at 33-34 and 58-59.
11 Dated July 17, 2013. Id. at 45.
12 Dated March 22, 2016. Id. at 46-50.
13CHAPTER 8
PROHIBITIONS
Section 59. Nepotism. - (1) All appointments in the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited.
As used in this Section, the word "relative" and members of the family referred to are those related within the third degree either or consanguinity or of affinity.
(2) The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines: Provided, however, That in each particular instance full report of such appointment shall be made to the Commission.
The restriction mentioned in subsection (1) shall not be applicable to the case of a member of any family who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau, in which event the employment or retention therein of both husband and wife may be allowed.
(3) In order to give immediate effect to these provisions, cases of previous appointments which are in contravention hereof shall be corrected by transfer, and pending such transfer, no promotion or salary increase shall be allowed in favor of the relative or relatives who are appointed in violation of these provisions.
14CHAPTER 9
LEAVE OF ABSENCE
Section 67. Penal Provision. - Whoever makes any appointment or employs any person in violation of any provision of this Title or the rules made thereunder or whoever commits fraud, deceit or intentional misrepresentation of material facts concerning other civil service matters, or whoever violates, refuses or neglects to comply with any of such provisions or rules, shall upon conviction be punished by a fine not exceeding one thousand pesos or by imprisonment not exceeding six (6) months, or both such fine and imprisonment in the discretion of the court.
15 Otherwise known as the "Administrative Code of 1987."
16 See rollo, pp. 34 and 58.
17 See Counter-Affidavit dated May 20, 2016; id. at 51-53.
18 See id. at 34, 52, and 54.
19 Id. at 58-63.
20 Id. at 61.
21 See id. at 59-60.
22 See Motion for Reconsideration and Reinvestigation dated January 30, 2017; id. at 64-82.
23 See id. at 73-74.
24 Id. at 83-86.
25 See Petition for Review dated May 25, 2017; id. at 105-123.
26 Id. at 33-36.
27 Id. at 36.
28 See id. at 35-36.
29 See Motion for Reconsideration dated March 23. 2018; id. at 124-137.
30 Id. at 38-40.
31 See Debulgado v. Civil Service Commission, G.R. No. 111471, September 26, 1994, 237 SCRA 184, 191.
32CSC v. Dacoycoy, 366 Phil. 86, 102-103 (1999).
33Laurel V v. CSC, 280 Phil. 212, 228 (1991).
34 266 Phil. 166 (1990).
35 Id. at 171; underscoring supplied.
36 Entitled "2017 OMNIBUS RULES ON APPOINTMENTS AND OTHER HUMAN RESOURCE ACTIONS" (JULY 3, 2018).
37 See Laurel V v. CSC, supra note 33, at 227-228.
38 Id. at 228-229.
39 See rollo, pp. 33-34 and 58-59.
40 See id. at 17-20.
41 See id. at 19-20.
42 Id. at 159.
43 Id. at 160-161.
44 Id. at 162-163.
45 Id. at 156. Signed by Provincial Accountant Charles B. Tonera.
46 Id. at 157. Signed by Provincial Budget Officer Delia D. Abelardo.
47 Id. at 158. Signed by Supervising Administrative Officer Theresa E. Burgos.
48 Id. at 156-157.
49 Supra note 31.
50 Id. at 194-198; emphasis and underscoring supplied.
51 See id. at 180.
52Debulgado v. CSC, supra note 31, at 198.
53 Id.
54 Supra note 32.
55 Id. at 106; emphasis supplied.
56Office of the Ombudsman-Mindanao v. Martel, 806 Phil. 649, 662 (2017), citing Bureau of Internal Revenue v. Organo, 468 Phil. 111, 118 (2004) and Chavez v. Garcia, 783 Phil. 562, 573 (2016).
57Office of the Ombudsman v. Mallari, 749 Phil. 224, 249 (2014).
58Ganzon v. Arlos, 720 Phil. 304, 107 (2013).
59 See Section 46 (A). Rule 10 of the RRACCS.