CEBU City Mayor Tomas Osmeña, recognizing the threat of an additional member of the opposition in the City Council, said Tuesday (July 11) he will ask his lawyers to look if the appointment of Erik Espina, former Cebu governor Rene Espina’s son, to replace Anthony James Cuenco was lawful.
Espina, as member of UNA under which Cuenco ran, was appointed last July 5 by President Duterte (through his executive secretary) and took his oath last July 9.
No dispute about Espina’s party membership and nomination. Mayor Tomas’s question, which some private lawyers also raised, was that there was no permanent vacancy yet since Cuenco still has a pending petition for review on certiorari with the Court of Appeals.
The apparent confusion is due to the common understanding that since the case is still with the appellate court, it is not yet “final and executory.” So the vacancy is not yet permanent. So Cuenco’s vacant seat cannot yet be filled. Right?
Wrong, according to the Supreme Court. The SC holds this precept that the law abhors a vacuum. “Vacancy creates an anomalous situation,” it said in Menzon vs. Petilla (May 20, 1991, GR #90762) “and deprives constituents of their right of representation and governance in the local government.”
While the Leyte case involves the appointment of a vice governor when the vice governor became acting governor, the principle applies as well to filling a vacant seat in the “sanggunian” (council or board).
Rule 45, not Rule 46
But how can the appointment be made when the Local Government Code (LGC) provision on temporary vacancies (Sec. 46) applies only to governors and mayors, not to vice governors and “sanggunian” members? Which law to use. Apply the LGC provision (Sec. 45 [a]) on permanent vacancies.
Odd? Maybe but that’s the law, and the law is how the high tribunal interprets it. A problem of temporary vacancy? Apply the solution on permanent vacancy.
If Cuenco wins
As the Department of Interior and Local Government (DILG) guided local officials in an opinion (#19 of Aug. 17, 2017) on a “sanggunian” vacancy similar to that created by Cuenco’s dismissal, the ombudsman decision is enforced and the dismissed public official removed. The process proceeds unimpeded unless the court issues a TRO on time.
None was issued for Cuenco who filed a petition for review. But if James wins, he is restored to his office for the unexpired term and paid his uncollected salaries and emoluments as if he were preventively suspended.
Executory but not final
Was the ombudsman ruling that dismissed Cuenco “final and executory”?
 It was executory because under ombudsman rules of procedure (Sec. 7, Rule 3), though it was appealable to the CA (to the ombudsman, a verified petition for review on certiorari amounts to an appeal), it “shall not stop the decision from being enforced.” Thus, Cuenco was evicted even though he went up to the Court of Appeals. “Execution is a matter of course.”
 It was not final in the sense that the higher court could reverse the ombudsman decision and order Cuenco’s return to the City Council, to serve whatever is left of his term, and to get his back pay and benefits.
Can Tomas question?
The mayor can order his lawyers to sue but it is doubtful if it would result in nullifying Espina’s appointment. Given the DILG position and the SC precept that the temporary vacancy must be filled, even by using the LGC provision on permanent vacancy.
Tomas may just have to look for other ways to tilt the City Council balance in his party’s favor, such as clinching the ABC presidency and luring more defectors to the BOPK in the likes of Dave Tumulak and Mary Ann de los Santos.