G.R. No. 181367 LA CARLOTA CITY, NEGROS OCCIDENTAL, represented b !

ts
"#or, $ON. %E&&REY '. &ERRER, ET AL., petitioners versus ATTY. RE( G.
RO%O, respondent.

Promulgated:

April 24, 2012
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CONC+RRING O'INION
,In t-e Res./t0

1RION, J.2

The constitutional issue before us is whether Atty. e! o"o#s $Rojo% appointment
&iolated the constitutional ban on appointment.
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The answer to this )uestion depends on
the resolution of the prior and underlying )uestion of whether petitioner o"o e*ecti&ely
resigned from his post as sanggunian member before he was appointed as sanggunian
secretary. This )uestion, in turn, hinges on the much prior issue of the number of
sanggunian members needed to &alidly act on o"o#s tender of resignation.

+hile , concur with the conclusion reached by the ponencia, , wish to emphasi-e
that the .ice/0ayor as presiding o1cer is considered a member of the sanggunian for
purposes of )uorum determination only. ,n particular, the ma"ority#s ruling should by no
means be interpreted as including the .ice/0ayor $as presiding o1cer% as sanggunian
member, where the 2ocal 3o&ernment 4ode $LGC% itself prescribes a speci5c &oting
re)uirement that ma6es )uorum determination irrele&ant.

Brief Factual Antecedents

7n 0arch 10, 1884, o"o, a member of the 9anggunian Panlungsod $SP% of 2a
4arlota 4ity, applied for the &acant position of 9P 9ecretary. 7n the 0arch 1:, 2004
session of the 9P, o"o tendered his irre&ocable resignation as 9P 0ember. At that time,
.ice/0ayor e! ;alandoon $Jalandoon%, as presiding o1cer, and si! members of a twel&e/
member sanggunian were present.

7n 0arch 1<, 2004, ;alandoon appointed o"o as 9P 9ecretary and the latter
immediately too6 his oath of o1ce. 7n 0arch 2=, 2004, the appointment ban for the 0ay
2004 elections too6 e*ect. 7n April 2:, 2004, the 4i&il 9er&ice 4ommission $CSC% >ield/
71ce disappro&ed o"o#s appointment due to incomplete re)uirements. ;alandoon
appealed the disappro&al to the 494 egional 71ce.

The 2004 elections resulted in changes in the 2a 4arlota local go&ernment. The
newly elected 0ayor and .ice/0ayor of 2a 4arlota 4ity sought to a1rm the disappro&al of
o"o#s appointment, alleging that there had been no )uorum when o"o tendered his
resignation before the 9P. 9ince o"o#s resignation could not ha&e been &alidly accepted
for lac6 of )uorum, it was argued that o"o continued to be an electi&e o1cial who was
ineligible for appointment to a public o1ce under the 4onstitution.
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Core Iss.e

, submit that the )uorum issue in this case can be decided by approaching the
problem from the point of the )uestion: to whom does the LGC vests the power
to accept the resignation of a member of the sanggunian?

" 'os!t!on

Article <2 of the 234 reads:

9ection <2. esignation of ?lecti&e 71cials. @ $a% esignations by electi&e
local o1cials shall be deemed e*ecti&e only upon acceptance by the following
authorities:

$1% The President, in case of go&ernors, &ice/go&ernors, and mayors and &ice/
mayors of highly urbani-ed cities and independent component cities:
$2% The go&ernor, in case of municipal mayors, municipal &ice/mayors, city
mayors and city &ice/mayors of component cities:
$A% The s#n33.n!#n 4on4erned, in the case of sanggunian membersB and
$4% The city or municipal mayor, in case of barangay o1cials.

! ! ! !

$d% ,rre&ocable resignations by sanggunian members shall be
deemed accepted upon presentation before an open session of
the s#n33.n!#n 4on4erned and duly entered in its
records: Pro&ided, howe&er, that this subsection does not apply
to sanggunian members who are sub"ect to recall elections or to
cases where e!isting laws prescribe the manner of acting upon
such resignations.

This Article lays down the rule on resignations and identi5es the authorities with the
power to accept the resignation of particular local go&ernment o1cials. ,n the case of
sanggunian members, that authority is the local legislati&e body @ the sanggunian
concerned of which the resignee is a member.

Cefore determining what the law e!actly means in ma6ing reference to the
Dsanggunian concerned,E 9ection FA of the 234 prescribes a )uorum re)uirement before
the sanggunian can &alidly transact its regular o1cial business.

Se4t!on 53. Quorum. /

$a% A 6#7or!t o8 #// t-e 6e6bers of the sanggunian 9-o -#:e been
e/e4ted #nd ;.#/!<ed shall constitute a )uorum to transact o1cial
business. 9hould a )uestion of )uorum be raised during a session, the
presiding o1cer shall immediately proceed to call the roll of the members
and thereafter announce the results.

! ! ! !


7n the other hand, Article 4F: of the 234 identi5es the composition of the
sanggunian for the purpose of determining the Dsanggunian concernedE authori-ed
to accept the resignation of its member. Article 4F: reads:

9ection 4F:. 4omposition. @ $a% The 9anggunian Panlungsod, the legislati&e
body of the 4ity shall be 4o6posed o8 the city :!4e*6#or #s pres!d!n3
o=4er, the regular sanggunian members, the president of the city chapter of
the liga ng mga barangay, the president of the panlungsod na pederasyon ng
mga sangguniang 6abataan, and the sectoral representati&es as members.


Cased on these pro&isions, , belie&e that it is absurd not to include the presiding
o1cer in determining whether a )uorum e!ists since $i% the law includes him as part of the
body authori-ed to accept an electi&e local o1cial#s resignation and $ii% this body / the
Dsanggunian concernedE / can &alidly act only if there is a )uorum.

0oreo&er, while the .ice/0ayor as presiding o1cer cannot &ote e!cept in case of tie,
'A(
the determination of the )uorum for purpose ofaccepting a resignation of a sanggunian
member does not re)uire an #4t!:e participation on the part of any member of the
sanggunian.

Gnder the 234, the only e!press prohibition against the resignation of an electi&e
local o1cial is when he is the sub"ect of an on/going recall process.
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Gnder the Anti/3raft
and 4orrupt Practices Act, a public o1cer who is the sub"ect of a pending in&estigation
$administrati&e or criminal% or prosecution
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is li6ewise prohibited from resigning. This
prohibition, howe&er, is for the sole purpose of pre&enting him from frustrating the ongoing
in&estigation or prosecution, i.e., in order to be consistent with an indi&idual#s
constitutional right against in&oluntary ser&itude,
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a public o1cial may resign from the
ser&ice but his act will not cause the dismissal of the on/going proceeding against him.
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,n other words, in accepting a resignation, the sanggunian, as a body, simply ta6es a
passi&e stance on a matter that relates to the administrative duties of the ice!
"ayor himself.

The dichotomy $i.e., the counting of the Presiding 71cer for purpose of )uorum but
without gi&ing him the right to &ote e!cept in case of a tie% can be better appreciated if it is
considered that, unli6e in the old 234, the presiding o1cer is empowered, as a rule, to
appoint all o1cials and employees of the sanggunian.
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,n the present case, at issue is
petitioner o"o#s resignation as a sanggunian member for the e!press purpose of applying
for the position of sanggunian secretary whom the .ice/0ayor can appoint. ,n other words,
wo&en into the )uestion of resignation is the function of appointment that the law
e!pressly assigned to the .ice/0ayor. These circumstances add to the reasons "ustifying
the conclusion that the .ice/0ayor#s presence in accepting the resignation is material.

efutation of the dissent!s reliance on "ere#

;ustice Hel 4astillo#s Hissent relies on the 18=8 case of Pere# v. $on. %ela Cru#.
'8(
The use of the Pere# ruling, in my &iew, is misplaced.

,n Pere#& the Iaga .ice/mayor .irginia Pere- wanted to :ote !n t-e se/e4t!on of $i%
the secretary of the municipal board of Iaga and $ii% the chairmen of the board#s &arious
standing committees. The 4ourt held that Pere- does not possess any :ot!n3
r!3-t considering that she was not a member of the municipal board.

,n order to fully appreciate Pere#, proper consideration of its legal setting is
critical. The pertinent laws then were:

a. epublic Act $R'% A0F $the 4harter of Iaga%. This law d!d not pro&ide
for the position of .ice/0ayorB and

b. A Io. 22F8 $An Act 0a6ing ?*ecti&e the 71ces of 0ayor, .ice/0ayor
and 4ouncilors in 4hartered 4ities !!!%. This law created the position of
&ice/mayor in Iaga, among others. 9ection A of this law, howe&er,
simply pro&ides that Dthe .ice/0ayor shall be the presiding o(cer of
the 4ity 4ouncil or 0unicipal Coard in all chartered cities.E


Cased on these laws, Pere# noted that D'A 22F8( does not decree that the &ice/mayor is
a member of the city council or municipal board.E Iecessarily, not being a member, she
could not ha&e any direct and active participation in 5lling the local appointi&e positions in
Iaga.

)irst, A Io. 22F8, the applicable law at that time, did not pro&ide for a similar
pro&ision under the 234 on the 4o6pos!t!on o8 t-e s#n33.n!#n, aside from stating that
the .ice/0ayor shall be the presiding o1cer of the city council or municipal board of
chartered cities. ,n fact, under A Io. 22F8, the powers of the .ice/0ayor clearly show
that @ aside from being the presiding o1cer of the city council @ he was merely a Dspare
tireE
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who could assume the powers of the 0ayor only in case of the latter#s inability:
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Se4t!on 3. ) ) )

T-e >!4e*"#or s-#// per8or6 t-e d.t!es #nd e)er4!se t-e po9ers o8
t-e 6#or !n t-e e:ent o8 t-e /#tter?s !n#b!/!t to d!s4-#r3e t-e
po9ers #nd d.t!es o8 -!s o=4e. In t-e e:ent o8 # per6#nent :#4#n4
!n t-e o=4e o8 6#or, t-e :!4e*6#or s-#// be4o6e 6#or 8or t-e
4o6p/et!on o8 t-e .ne)p!red ter6. ) ) )

Second, Pere# resol&ed the )uestion of whether the presiding o1cer could :ote in
the selection of local appointi&e o1cials. ,n order to resol&e this issue, the 4ourt had to
determine whether the presiding o1cer was also a member of the municipal boardJcity
council. As pre&iously discussed, the present case does not in&ol&e the #4t!:e role of the
sanggunian as a body, e!ercising discretion whether to fa&orably &ote or notB only the
sanggunian#s p#ss!:e role in accepting the resignation of a sanggunian member is
in&ol&ed. ecall in this regard that under 9ection <2 of the 234, the authority to accept a
resignation resides in the Dsanggunian concerned,E and that under Article 4F:, the .ice/
0ayor is part of the composition of the sanggunian. These distinctions can only lead to
the conclusion that the Hissent cannot draw strength from Pere# in determining whether
there was )uorum for the purpose of acting on petitioner o"o#s resignation.

4ontrary to the Hissent#s posture, we are not here gi&ing additional role and
prerogati&e to a presiding o1cer. Ior does our interpretation purport to gi&e an acti&e role
to a presiding o1cer aside from what inheres to his position. +e only resol&e the issue of
whether he should be counted for purposes of )uorum on an administrati&e matter which
relates to his duties and inheres to his position @ a passi&e participation in the a*airs of the
body o&er which he actually presides and which he presumably inKuences for the common
good.

$he case of %amora v. Caballero

,n *amora v. Caballero,
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the 4ourt was confronted with the )uestion of 9-et-er
# regular sanggunian member, who 5led a lea&e of absence and whose alleged
departure o&erseas was not pro&ed, should be considered in determining whether
there was &uorum at the time the sanggunian transacted o1cial business. The 4ourt
ruled in the a1rmati&e, holding that /

,n 5ne, the entire membership must be ta6en into account in
computing the )uorum of the sangguniang panlala+igan, for while the
constitution merely states that Dma"ority of each Louse shall constitute a
)uorum,E 9ection FA of the 234 is more e!acting as it re)uires that the
Dma"ority of all members of the sanggunian,elected and -uali.edE shall
constitute a )uorum.

The di*erence in the wordings of the 4onstitution and the 234 is not
merely Da matter of style and writingE as respondents would argue, but is
actually a matter of Dmeaning and intention.E The )uali5cation in the 234
that the ma"ority be based on Dthose elected and )uali5edE was meant to
allow sanggunians to function e&en when not all members thereof ha&e been
proclaimed. And, while the intent of the legislature in )ualifying the )uorum
re)uirement was to allowsanggunians to function e&en when not all members
thereof ha&e been proclaimed and ha&e assumed o1ce, the pro&ision
necessarily applies when, after all the members of the sanggunian ha&e
assumed o1ce, one or some of its members 5le for lea&e. +hat should be
important then is the concurrence of election to and )uali5cation for the
o1ce. And election to, and )uali5cation as member of, a local legislati&e
body are not altered by the simple e!pedient of 5ling a lea&e of absence.


ead in light of *amora, the fact that the .ice/0ayor is DelectedE and, by &irtue of his
position, D)uali5esE as the sanggunian#s presiding o1cer assumes added signi5cance.

, submit, howe&er, that the force of *amora should not go beyond what the 4ourt
decreed in that case. The legality of the .ice/0ayor#s $as presiding o1cer% inclusion as
member of the sanggunian did not confront *amora, which simply assumed that the
presiding o1cer was included in the determination of the number of members re)uired to
constitute a )uorum. >or emphasis, *amora resol&ed the issue of whether an absent
regular member should be included in )uorum determinationB it did not rule on the
inclusion of the .ice/0ayor, as presiding o1cer, in the sanggunian membership. The latter
issue is what the 4ourt now resol&es.

The sanggunian is a collegial body performing se&eral legislati&e and non/legislati&e
functions.
'1A(
Gnder the 234, the &oting re)uirement for an a1rmati&e action on the part of
the sanggunian &aries depending on the particular power to be e!ercised or the measure
to be adopted. The &oting re)uirement could be $i% two/thirds $2JA% of all its membersB
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or
$ii% two/thirds $2JA% &ote of the members present, there being )uorumB
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or $iii% three/
fourths $AJ4% of all its membersB
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or $i&% ma"ority &ote of all the membersB
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or $&i% simply
concurrence of the sanggunian concernedB
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or $&ii% a1rmati&e &ote of a ma"ority of the
members present, there being a )uorumB
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or $&iii% unanimous &ote of the sanggunian
concerned.
'20(

,f the &oting le&el re)uired would engage the entiret' of the sanggunian as a
collegial body, ma6ing the )uorum re)uirement least signi5cant, there is no rhyme or
reason to include the presiding o1cer#s personality at all. The possibility of that one
instance where he may be allowed to &ote is nil. To include him in sanggunian
membership without this )uali5cation would ad&ersely a*ect the statutory rule that
generally prohibits him from &oting.

To illustrate, in disciplining members of the sanggunian where the penalty in&ol&ed
is suspension or e!pulsion, the 234 re)uires the concurrence of two/thirds $2JA% of all the
members of the sanggunian.
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,f the 9anggunian has thirteen $1A% regular members
$e!cluding the presiding o1cer%, the &otes needed to impose either of the penalty is eight.
Lowe&er, should the presiding o1cer be also included, therefore raising the membership
to fourteen $14%, @ on the premise that he is also sanggunian member @ e&en if he cannot
&ote in this instance, an additional one &ote is re)uired @ i.e., nine &otes are re)uired @
before the penalty is imposed. The presiding o1cer#s innocuous inclusion as sanggunian
member negati&ely impacts on the prohibition against him from &oting since his mere
inclusion a*ects the numerical &alue of the re)uired &oting le&el on a matter where
generally and by law he has no concern.

>or the foregoing reasons and )uali5cations, , &ote to DIS"ISS the petition and "oin
the result of ;ustice 4arpio#s ponencia.


ART+RO D. 1RION
Associate ;ustice