CA clears Gwen Garcia in Balili case

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Friday, April 25, 2014


CEBU CITY -- The Court of Appeals (CA) has nullified the decision of the Office of the Ombudsman finding former Cebu governor Gwendolyn Garcia liable for grave misconduct for the allegedly anomalous purchase of the Balili property in 2008.

The CA, in an 18-page decision penned by Associate Justice Gabriel Ingles, also cleared the five Capitol officials who were charged with Garcia.

They are former Provincial Board member Juan Bolo, provincial assessor Anthony Sususco, provincial treasurer Roy Salubre and provincial engineer Eulogio Pelayre, who were all members of the Provincial Appraisal Committee; and former provincial budget officer Emme Gingoyon.

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“Doubtless, public respondent acted whimsically, capriciously, and arbitrarily amounting to lack of jurisdiction when it still proceeded to adjudicate the administrative cases against petitioner after her reelection,” read the CA decision, which was promulgated on April 23.

Moot

Ingles, the newly appointed CA Cebu Station executive justice, clarified that the decision has no effect on the criminal case pending before the Sandiganbayan.

“In effect, the CA is saying that since the case is already moot… the ombudsman should have dismissed the administrative complaint. By entertaining it, it has committed grave abuse of discretion,” Ingles told Sun.Star Cebu.

Lawyer Christina Garcia-Frasco, Garcia’s daughter and legal counsel, welcomed the development.

“We are very happy that the CA has issued a favorable resolution, stating that the ombudsman acted with grave abuse of discretion in not dismissing the administrative case against Congresswoman Gwen Garcia concerning the Balili properties,” Frasco said.

Garcia was elected representative of Cebu’s third district in last May’s elections.

“The cases involving the Balili properties were already moot... in view of Congresswoman Garcia’s reelection as governor in 2010 where the people of Cebu affirmed their faith in the former governor and gave her a fresh mandate,” she said.

In an interview, Deputy Ombudsman Pelagio Apostol said it is now up to the Ombudsman Manila whether to file a motion for reconsideration.

Apostol echoed Ingles’s statement that the ruling on the administrative case will not affect the merit of the criminal case before the Sandiganbayan.

Background

In July 2012, Ombudsman Conchita Carpio-Morales charged Garcia before the Sandiganbayan with two counts of graft and technical malversation in relation to the Capitol’s purchase of the 24.92-hectare Balili property in Tinaan, City of Naga.

The ombudsman also charged Bolo, Sususco, Salubre, Pelayre and Gingoyon with one count of graft each.

The ombudsman also indicted lot owner Amparo Balili and Romeo Balili, the estate’s executor.

Morales found the public respondents administratively liable of grave misconduct, saying the purchase was “grossly and manifestly disadvantageous to the government.”

The governor pleaded not guilty to both cases during her arraignment on March 22, 2013.

In March last year, Tranquil Salvador and Jomini Nazareno, her lawyers, filed the petition for certiorari with prayer for a temporary restraining order and writ of preliminary injunction.

They asked the CA to stop the Office of the Special Prosecutors (OSP) from “further persecuting” the former governor.

The lawyers argued the ombudsman “has glaringly acted with capriciousness and arbitrariness in holding, and publicly announcing that Governor Garcia is administratively liable for grave misconduct despite having been exonerated by her reelection as governor of Cebu in 2010.”

In its comment, the Ombudsman, through the OSP, argued that Garcia was found “guilty” of grave misconduct, but no penalty was imposed on her because of the Aguinaldo Doctrine.

“Clearly, petitioner was not exonerated, but only cleared of any administrative liability,” the OSP said.

In the decision, Ingles held that any misconduct committed by a public official during a previous term is condoned after the official is reelected.

He cited the Pascual, Lizares and Aguinaldo Doctrines in granting Garcia’s petition.

“In light of the foregoing Supreme Court decisions, the public respondent cannot pronounce the petitioner as administratively guilty for grave misconduct in the cases, which have already become moot and academic,” he said. (GMD/With a report from FMG/Sun.Star Cebu)

Published in the Sun.Star Cebu newspaper on April 26, 2014.

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