Republic of the Philippines

COURT OF APPEALS
Mindanao Station
YMCA Building, Cagayan de Oro City

BENEDICTO H. ALCALA, Salary Grade 27, CASE NO._________________

Mayor

JOVENCIA S. ASILO, Salary Grade 24 For: Petition for Review under Rule
Municipal Plannig and Development Officer 43 of the Rules of Court re:

CATALINO A. SUMAYLO, Salary Grade 24 OMB-V-C-140141

Municipal Budget Officer For: Violation of Republic Act
Chairman, Bids and Awards Committee No. 3019, Section 3(e)
(BAC) And

ROGELIO S. BUNAO, Salary Grade 24 OMB-V-A-14-0136

RENA D. GUIVENCAN, Salary Grade 24 For: Grave Misconduct
DIONISIA H. ESTOPITO, Salary Grade 10
RENE B. LUSTRE, Salary Grade 7
Members, BAC

All of: Municipality of Panglao

Province of Bohol

Petitioner,
- versus -

Ombudsman Conchita Carpio-Morales,

Office of the Ombudsman,

Respondent

PETITION

COMES NOW, Petitioner, through counsel, and unto this Honorable

Court of Appeals, most respectfully avers that:

NATURE OF THE ACTION

 1. This is a petition for Review under Rule 43 of the Rules of

Court assailing the Decision of the Office of the Ombudsman in the case of

Office of the Ombudsman-Visayas, Public Assistance and Corruption Office

(PACPO) vs.Benedicto H. Alacala, et al. docketed as OMB-V-C-14-0141

and OMB-V-A-0136 dated April 22, 2016, a copy of which was received by

the Petitioner on June 8, 20161, finding herein Petitioners GUILTY of Grave

Misconduct and finding PROBABLE CAUSE for Violation of Republic Act

No. 3016, Section 3(e);

STATEMENT OF MATERIAL DATES

2. The Decision of the Office of the Ombudsman dated August 14,

2015 was received by the Petitioner on November 6, 2015. Thus, pursuant to

Section 4 of Rule 65 of the Revised Rules of Civil Procedure, Petitioner has

sixty (60) days or until January 5, 2015 to file the instant petition.

THE PARTIES

3. Petitioner is a Filipino citizen, of legal age, married, and is

presently a resident of Cagayan de Oro. He may be served with notices,

orders, resolutions and other judicial processes at the Mayor’s Office, City

Hall, Cagayan de Oro City.

14. Public respondent, the Office of the Ombudsman is a

government instrumentality of the Republic of the Philippines, represented

by the Ombudsman, the Hon. Conchita Morales-Carpio. She may be served

1 The duplicate original copy of the Decision is attached as Annex “A” of the FIRST COPY of
this Petition
with summons, orders, and other judicial processes at its office at the

Ombudsman Building, Agham Road, North Triangle, Diliman, Quezon City.

15. Public Respondent, Department of Interior and Local

Government is a government agency of the Republic of the Philippines,

represented by its Secretary, Hon. Mel Senen Sarmiento. He may be served

with summons, orders, and other judicial processes at DILG-NAPOLCOM

Center, Edsa corner Quezon Avenue, Quezon City.

16. Private respondent, William G. Guialani, is a Filipino citizen, of

legal age and a resident of Taglimao, Cagayan de Oro City where he may be

served with summons, orders, and other judicial processes. He is impleaded

herein as the person who originally filed the complaint against the

Petitioner;

17. The parties have capacity to sue and be sued.

ANTECEDENTS FACTS

18. Respondent Alcala was then the Municipal Mayor of

Panglao, Bohol at the time of this transaction while the rest of the

respondents are members of the Bids and Awards Committee (BAC)

of the said municipality. Herein respondents are charged for violation

of Sec. 3 (e) of R.A. 3019 and for Grave Misconduct regarding the

procurement of one (1) unit Kia Sorento in the amount of

P1,550,000.00 which was not subjected to competitive bidding

pursuant to Sec. 10, Art. IV of R.A. 9184 and the preference of brand

name in its procurement. The procurement was later on audited by

the Commission on Audit which incidentally was the basis of the filing
of this instant case. However, in the COA’s report, it did not find that

the procurement was irregular and neither was it disallowed in audit.

Despite the absence of such observation, complainant filed this case

against herein respondents. Thus, this instant case.

19. On February 10, 2016, herein respondent, received a copy of

the Joint Resolution dated October 08, 2015, finding probable cause for the

violation of Section 3(e) of R.A. 3019 against the herein respondent and at

the same time finding him guilty of Simple Misconduct and meted a penalty

of three (3) months suspension 20. In the year 2013, Glenn G. Bañez was

recommended by the Petitioner to the Bureau of Local Government Finance

as Office-In-Charge of the City Treasurer’s Office. After he took over, he

reviewed the records of payments of all the business establishments in

Cagayan de Oro City.

21. In the course of review, Glenn G. Banez concluded that the

classifications of some commodities have to be revised, including that of

Ajinomoto Philippines Corporation whose product, MSG (Monosodium

Glutamate), had been classified as an “essential” commodity when it should

have been classified as “non-essential” commodity by reason of its nature.

22. Accordingly, sometime in November 27, 2013, the Revenue

Examiners from the City Treasurer’s Office sent a Notice of Assessment to

Ajinomoto Philippines Corporation informing the latter of the

reclassification of its product, MSG (Monosodium Glutamate), from

“essential” to “non-essential” commodity. The reclassification has resulted

to tax deficiency in the amount of P2,924,428.00 inclusive of the difference,

surcharge and interest for the years 2006 to 2012. (Please see Annexes “D”

and “D-1” of the Counter-Affidavit of Glenn G. Banez in OMB-M-A-15-

0091).

23. Aggrieved over the reclassification and the resulting tax

deficiency assessment, Ajinomoto Philippines Corporation filed before the

Regional Trial Court of Misamis Oriental (Branch 17) a Petition for Review

docketed as Civil Case No. 2014-093 seeking relief from the deficiency tax

assessment issued by the City Government for the calendar years 2006 to

2012 in the amount of P2,924,428.34.

24. In its petition, Ajinomoto Philippines Corporation argued that

the reclassification made by the City Treasurer’s Office should not be

applied retroactively and that its company should not be penalized for the

erroneous classification made by the previous administration over which it

had no participation.

25. As part of the Pre-Trial, the case was referred by RTC Branch

17 to the Philippine Mediation Center for mediation. Eventually, Ajinomoto

Philippines Corporation agreed to have its case dismissed in exchange for a

compromised assessment in the amount of P300,000.00. The City

Government also agreed to apply the reclassification prospectively starting

the year 2014.

26. On August 14, 2014, parties signed a Settlement Agreement for

the purpose of resolving the disputed deficiency tax assessment for the years

2006 to 2012 and avoid unnecessary expenses from a prolonged litigation.

(Please see Annex “E”).

 27. Consequently, Ajinomoto Philippines Corporation paid the

amount of P300,000.00 as full settlement of the compromised assessment

and thereafter the Office of the City Treasurer issued a Letter of

Confirmation to Ajinomoto Philippines Corporation to conclude the

examination and/or investigation of the tax deficiency assessment. (Please

see Annex “F” and its sub-annexes).

28. The compromised assessment has proved beneficial to the City

Government as it was even higher that the usual annual tax payments

previously made by Ajinomoto Philippines Corporation in the years 2006 to

2012. The amount of P300,000.00 collected by the City Government was

also on top of the tax payable for 2014 and paid at 45% of 1% of the Gross

Sales instead of the half the rate (1/2%) under the classification “essential

commodities” in the prior years.

STATEMENT OF THE CASE

29. On March 13, 2015, the private respondent, William G.

Guialani, filed a verified complaint with the Office of the Ombudsman for

Mindanao against the Petitioner and Glenn G. Banez for grave abuse of

authority, grave misconduct and violation of R.A. No. 6713 on the

contention that the Settlement Agreement involving the tax deficiency

assessment was without prior authorization from the City Council.

30. On April 20, 2015, in compliance with the order of the Office

of the Ombudsman, Petitioner filed his Counter-affidavit addressing the

matters raised against him in the private respondents’ complaint. Petitioner

filed his counter-affidavit through the Satellite Office of the Ombudsman for
Mindanao in Cagayan de Oro City, as shown and indicated in the

rubberstamp receipt atop its front page. (Please see Annex “G”).

31. On June 17, 2015, Petitioner received an order from the Office

of Ombudsman for Mindanao directing him to submit his verified position

paper.

32. On June 24, 2015, Petitioner complied with the order and filed

his position paper jointly with his co-respondent, Glenn G. Banez.

33. On November 6, 2015, Petitioner received through mail a copy

of the assailed Decision of the Office of the Ombudsman dated August 14,

2015. The dispositive portion of which states thus:

“WHEREFORE, the Office finds respondents

Oscar S. Moreno and Glenn G. Banez GUILTY of Grave
Misconduct and are meted out the penalty of dismissal
from service, including the accessory penalties of
cancellation of eligibility, forfeiture or retirement
benefits and the perpetual disqualification for re-
employment in the government service. Further, the
charges of Grave Abuse of Authority and violation of
R.A. No. 6714 are dismissed.

In the event that the penalty can no longer be

enforced due to respondents’ separation from service, it
shall be converted into a Fine equivalent to their
respective salaries for one (1) year, payable to the Office
of the Ombudsman, and may be deducted from their
retirement benefits, accrued leave credits or any
receivable from the government.

This decision shall be executed as a matter of

course. The refusal or failure to comply with this
Decision of any officer, without just cause, shall be a
ground for disciplinary action against said officer.

The Honorable Secretary of the Department of

Interior and Local Government is directed to implement
the penalty meted out against the respondents, within ten
(10) days from receipt hereof, and to submit to this
 Office, within the same period, a Compliance Report
indicating the Docket of this case.

SO ORDERED.”

34. In the morning of November 9, 2015 or well within the

prescribed period allowed under Section 8 of Rule III of the rules of

Procedure of the Office of the Ombudsman, as amended, the petitioner

filed his Motion for Reconsideration.

THE CAUSE OF ACTION

35. Petitioner most respectfully submits that in view of the filing

and pendency of the Motion for Reconsideration with the Office of the

Ombudsman, the order to immediately implement the dismissal aspect of the

assailed Decision constitutes grave abuse of the discretion on the part of the

Office of the Ombudsman and is in excess of its authority and jurisdiction.

36. Firstly, the basis of authority of the order to implement the

dismissal aspect of the assailed Decision - Section 7, Rule III (Procedure in

Administrative Cases) of the Rules of Procedure of the Office of the

Ombudsman, as amended by Administrative Order No. 17 - obviously refers

to decisions of the Office of the Ombudsman which are PENDING

APPEAL.

37. Precisely, said provision states in part that “An appeal shall not

stop the decision from being executory”. In this case, however, no appeal

from the assailed Decision has been filed yet because a Motion for

Reconsideration was filed by the Petitioner within the prescribed period.

 38. Secondly, the other authority cited by the Office of the

Ombudsman for the immediate implementation of the dismissal aspect of the

Decision - Memorandum Circular No. 61, Series of 2006 - is, in turn, based

on Section 7, Rule III (Procedure in Administrative Cases) of the Rules of

Procedure of the Office of the Ombudsman which, as explained earlier,

should only refer to APPEALED CASES and NOT to cases with pending

motions for reconsideration.

39. Moreover, said memorandum circular appears to be an internal

issuance of the Office of the Ombudsman which has not been published nor

submitted to the Office of the National Administrative Register (ONAR) and

thus should not have the effect of affecting the substantial rights of the

Petitioner, such as, his right to have a stay of the execution of any decision

against him pending the resolution of his motion for reconsideration.

40. In this case, said Memorandum Circular, while appearing to be

merely an interpretative regulation and thus internal in nature, ACTUALLY

exceeds the intended effect and purpose of the provision that it has

interpreted.

41. Simply stated, said Memorandum Circular has extended the

executory nature of the appealed decisions of the Office of the Ombudsman

to cases which have not yet been appealed because of the pendency of a

motion for reconsideration. Obviously, this is not the intendment of the law.

The spring cannot rise above its source, so to speak.

 42. Petitioner submits that the application of Memorandum Circular

No. 61, Series of 2006 of the Office of the Ombudsman has exceeded the

established exception in the case of Tañada vs. Tuvera2, thus:

"We hold therefore that all statutes including those of

local application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days
after publication unless a different effectivity date is fixed by
the legislature.

Covered by this rule are presidential decrees and

executive orders promulgated by the President in the exercise
of legislative powers wherever the same are validly delegated
by the legislature or, at present, directly conferred by the
Constitution. Administrative rules and regulations must also
be published if their purpose is to enforce or implement
existing law pursuant to a valid delegation.

Interpretative regulations and those merely internal in

nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be
published. Neither is publication required of the so-called
letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.3

43. Finally, on substantial grounds, a reading of Petitioner’s Motion

for Reconsideration will reveal that it raises VERY MATERIAL

GROUNDS that should result to the reversal of the assailed Decision. In

fine, the following material matters, among others, were raised therein:

a. Contrary to the findings of the Honorable Office, Respondent

Moreno complied with the Order dated 27 March 2015 and filed
with the Honorable Office (through the Office of the Ombudsman
– Cagayan de Oro City) his Counter-Affidavit dated 10 April 2015.

b. There is no substantial evidence to hold Respondent Moreno liable

for grave misconduct and the penalty of dismissal is unjust and
excessive.

2 148 SCRA 446 (1986).

3 Italics and emphasis supplied
 c. With all due respect, the sole reliance of the Honorable Office on
Sec. 22 (c) of R.A. No. 7160 is misplaced.

d. The agreement forged by Respondent Banez with Ajinomoto

Philippines corporation (Ajinomoto) was in accordance with the
power vested in the City Treasurer pursuant to Section 195 of R.A.
No. 7160 and by the mandate of Section 2 (a), Rule 18 of the 1997
Rules of Civil Procedure and the Second Revised Guidelines for
the implementation of mediation proceedings approved by the
Supreme Court on October 16, 2001.

44. The foregoing material issues should first be resolved by the

Office of the Ombudsman before the implementation of the dismissal aspect

of the assailed Decision considering that serious consideration of these

issues by the Office of the Ombudsman will likely result to the dismissal of

the complaint against the Petitioner.

45. Petitioner most respectfully submits that the right to file a

Motion for Reconsideration and to have the same resolved before the

implementation of the supreme penalty of dismissal from service is an

essential part of Petitioners’ right to due process and thus, the immediate

implementation of the dismissal aspect of the Decision without awaiting the

resolution of the Motion for Reconsideration, is unjust and oppressive. It is

akin to condemning first before hearing;

46. Although referring to a criminal case, the wisdom and logic of

the ruling in the case of Sales vs. Sandiganbayan4, considering that the

filing of a motion for reconsideration is specifically authorized under

Section 8 of Rule III of the Rules of Procedure of the Office of the

Ombudsman, is applicable in the instant case.

4 G.R. No. 143802, November 16, 2001, 369 SCRA 293, 301.
 47. In the Sales case, the Supreme Court had, in essence, ruled that

the denial of the opportunity to file a motion for reconsideration in a

preliminary investigation by the immediate filing of the resolution was a

violation of the right to due process since the filing of such motion is an

integral part of the preliminary investigation proper thus:

“The filing of a motion for reconsideration is an integral

part of the preliminary investigation proper. There is no
dispute that the Information was filed without first affording
petitioner-accused his right to file a motion for
reconsideration. The denial thereof is tantamount to a denial of
the right itself to a preliminary investigation. This fact alone
already renders preliminary investigation conducted in this
case incomplete. The inevitable conclusion is that the petitioner
was not only effectively denied the opportunity to file a motion
for reconsideration of the Ombudsman's final resolution but
also deprived of his right to a full preliminary investigation
preparatory to the filing of the information against him”5

48. Applying the foregoing rule to the instant case, since the rules

of the Office of the Ombudsman specifically allows the filing of a motion

for reconsideration in administrative cases, as earlier above, the

implementation of the dismissal aspect of the Decision, despite the filing of

a Motion for Reconsideration, will also effectively amount to a denial of due

process on the part of the Petitioner since the penalty is already being

imposed even if his motion for reconsideration is still pending.

49. In view of the foregoing matters, it is thus clear that the

dismissal aspect of the assailed Decision should not be implemented by

Department of Interior and Local Government against the Petitioner pending

the resolution of his Motion for Reconsideration with the Office of the

Ombudsman.

5 Ibid
 50. Considering that the dismissal aspect of the assailed Decision of

the Office of the Ombudsman directs the immediate implementation of the

penalty of DISMISSAL against the Petitioner, even if his Motion for

Reconsideration is still pending for resolution, he can no longer just wait for

its resolution. Thus, there is no appeal or any other, plain, speedy and

adequate remedy in the ordinary course of law, for him to seek the relief that

he immediately needs to protect his rights which are sanctimonious in the

courts of law.

ALLEGATIONS IN SUPPORT OF
THE PRAYER FOR INJUNCTIVE RELIEFS

51. All of the foregoing matters, as well as the documents attached

in this petition, are adopted as allegations in support of the prayer for

injunctive relief.

52. There is an extreme urgency for the issuance of a Temporary

Restraining Order and Writ of Preliminary Injunction in view of the

immediacy of the dismissal aspect of the assailed Decision and the directive

by the Office of the Ombudsman to the Secretary of the Department of

Interior and Local Government to immediately implement the dismissal

order on the Petitioner within ten (10) days from receipt. Thus, it stands to

reason that the process of implementation of the dismissal order is now

proceeding, as it is very imminent and forthcoming considering that the

Decision was transmitted (Indorsement dated 19 October 2015) to the

Department of Interior and Local Government on November 3, 2015.

(Please see Annex “H”).

 53. Petitioner was bestowed with a sovereign mandate. He was

duly elected by the widest margin in recent memory in the 2013 local polls

against a very dominant political kingpin in Cagayan de Oro City. Petitioner

had therefore a clear and unmistakable right to his hold his elective office as

local chief executive and serve for three (3) full years until June 30, 2016.

54. Unless a Temporary Restraining Order and, subsequently, a

Writ of Preliminary Injunction, is issued by the Honorable Court of Appeals

to enjoin and prevent the Office of the Ombudsman, through the

Department of Interior and Local Government from implementing the

dismissal aspect of the assailed Decision, the Petitioner stands to suffer

grave and irreparable injury. Petitioner could not just be removed from

office with justifiable cause. Otherwise, his continuing program on health

and education will be put in jeopardy. It is public knowledge that the Vice

Mayor and the majority of the City Council are political adversaries of the

Petitioner. There is no doubt that his programs on health and education, if he

be removed from office, will be discontinued by his successor. The

consequence may not even be apt for description as irreparable injury

because ultimately it will be the poor and marginalized who will be seriously

affected by the absence of such services.

55. If required, Petitioner is willing to put up a bond in an amount

and under such conditions as the Honorable Court of Appeals may deem

proper in support of the prayer for injunctive relief.

PRAYER
 WHEREFORE, PREMISES CONSIDERED, it is most respectfully

prayed of this Honorable Court of Appeals that:

BEFORE DUE PROCEEDINGS:

A Temporary Restraining Order be immediately issued to enjoin the

Office of the Ombudsman, represented by Hon. Conchita Morales-Carpio

and the Department of Interior and Local Government, represented by its

Secretary, Hon. Mel Senen Sarmiento, from implementing the dismissal

aspect of the assailed Decision, pending the resolution of Petitioner’s

Motion for Reconsideration.

AFTER HEARING SHOULD ONE BE FOUND NECESSARY:

A Writ of Preliminary Injunction be issued to enjoin the Office of the

Ombudsman, represented by Hon. Conchita Morales-Carpio and the

Department of Interior and Local Government, represented by its Secretary,

Hon. Mel Senen Sarmiento, from implementing the dismissal aspect of the

assailed Decision, pending the resolution of Petitioner’s Motion for

Reconsideration.

AFTER DUE PROCEEDINGS

That judgment be rendered in favor of the Petitioner NULLIFYING

THE IMMEDIACY OF THE DISMISSAL ASPECT OF THE

ASSAILED DECISION and making permanent the injunction enjoining

the Office of the Ombudsman, represented by Hon. Conchita Morales-

Carpio and the Department of Interior and Local Government, represented

by Mel Senen Sarmiento, from implementing the Decision of the Office of

the Ombudsman, dated August 14, 2015, pending the resolution of the
Motion for Reconsideration of the said Decision in the Office of the

Ombudsman.

Other reliefs, just and equitable under the premises, are likewise

prayed for.

Cagayan de Oro City, Philippines. November 9, 2015.

Copies served via registered mail to:

HON. CONCHITA CARPIO-MORALES

Ombudsman
The Office of the Ombudsman
Ombudsman Building
Agham Road,
Quezon City - Per Reg. Rec. No. ___________

OFFICE OF THE DEPUTY OMBUDSMAN FOR MINDANAO

4th floor H&C Building, Alvarez Street,
Ramon Magsaysay Avenue, Sta. Ana,
Davao City 8000 - Per Reg. Rec. No. ___________

HON. MEL SENEN SARMIENTO

Secretary
Department of Interior and Local Government
DILG-NAPOLCOM Center
EDSA corner Quezon Avenue
Quezon City - Per Reg. Rec. No. ___________

WILLIAM G. GUIALANI
Barangay Taglimao
Cagayan de Oro City - Per Reg. Rec. No. ___________
REPUBLIC OF THE PHILIPPINES )
CITY OF CAGAYAN DE ORO……..)S.S.

VERIFICATION
AND CERTIFICATION AGAINST FORUM SHOPPING

I, OSCAR S. MORENO, married, of legal age, Filipino citizen and

resident of Cagayan de Oro City, after having been duly sworn in
accordance with law hereby depose and say:

1. That I am the Petitioner in the instant case;

2. That I have caused the preparation and filing of this Petition;

3. That I have read the same and have understood the contents
thereof which are correct based on my personal knowledge and based
on authentic documents;

4. That I have not commenced any other action or proceeding

involving the same issues in the Supreme Court, the Court of Appeals
or different Divisions thereof, or any other tribunal or agency, and
that to the best of our knowledge no such action or proceeding is
pending in the Supreme Court, the Court of Appeals, or different
Divisions thereof or any other Tribunal or Agency. That should I
learn that a similar action or proceeding has been filed or is pending
before the Supreme Court, I undertake to report the fact within five
(5) days therefrom to the court or agency wherein the original
pleading and sworn certification contemplated herein has been filed.

IN WITNESS WHEREOF, I have hereunto set my hand this

_______________ in _______________.

OSCAR S. MORENO
Petitioner

SUBSCRIBED AND SWORN TO before me this

__________________in ____________________, Philippines. The affiant
is personally known to me, and he is the same person who executed the
foregoing instrument, and he acknowledged to me that the same is his free
act and deed.

Doc. No. ___;

Page No. ___;
Book No. ___;
Series of 2015