THE Court of Appeals (CA) has reversed and set aside the decision of the ombudsman finding Rep. Gwendolyn Garcia guilty of grave misconduct.
It dismissed the ombudsman case against her over the Balili property in the City of Naga, Cebu.
The decision of the CA Special Division of Five was promulgated on May 10, 2019, three days before election day. It was signed by five associate justices but with two of them dissenting.
The CA found meritorious Garcia’s petition for review of the Dec. 19, 2017 decision of the Office of the Ombudsman finding her guilty of grave misconduct and its subsequent July 18, 2018 order to dismiss her from service.
It zeroed in on the assignment of three errors:
* that the ombudsman violated Garcia’s right to a speedy disposition of her case;
* that Garcia is liable for simple misconduct and not grave misconduct; and
* the condonation doctrine should be applied.
Speedy disposition
The complaint against Garcia and 10 other Capitol officials for grave misconduct and gross neglect of duty was filed on Dec. 7, 2012 by current Gov.
Hilario Davide III and two others over Garcia’s “unilateral decision” to start the filling of the mangrove and submerged portions of the Balili property without Provincial Board approval.
It wasn’t until June 6, 2013 that the case was docketed.
Also, the period for the filing of the pleadings was extended till June 2015.
On Dec. 19, 2017, the Ombudsman rendered a decision finding Garcia guilty of grave misconduct for entering into contracts with ABF Construction for the filling works without PB authority.
The CA pointed out that the ombudsman took two and a half years to resolve the case against Garcia.
“A delay of 2 1/2 years is highly unreasonable and unjustifiable most especially in the light of the (ombudsman’s) mandate to prioritize cases filed against a high ranking official” such as Garcia, a congresswoman, the CA said.
Simple misconduct
The elements of corruption, clear intent to violate the law, or flagrant disregard of an established rule must be manifest for a transgression of an established rule to qualify as grave misconduct, the CA said.
The CA said that Garcia’s entering into contracts with ABF Construction without PB authority “constitutes simple misconduct” because Davide and subsequently the ombudsman “failed to present substantial evidence to prove that her act was deliberate and done to procure some benefit for herself or for another person.” It was “apparent” that Garcia “transgressed an established rule, the elements of corruption, clear intent to violate the law, or flagrant disregard of an established rule were not duly proven to categorize her acts as grave.” “Therefore, she is only liable for simple misconduct,” the CA said.
Simple misconduct carries with it a penalty of six months suspension.
The Ombudsman decision and order would have meant that Garcia would have her eligibility cancelled, she would forfeit her retirement benefits, and she would forever be disqualified from running for public office or joining government service.
Condonation Doctrine
The CA said that while the Supreme Court has declared unconstitutional and abandoned the condonation doctrine in the Carpio-Morales v. Court of Appeals on Nov. 10, 2015, in Garcia’s case, the abandonment of the doctrine “has to be applied prospectively.” In the 2010 elections, Garcia won as governor. In 2013, she got elected to Congress as Cebu’s third district representative, a different position.
Her transactions with ABF Construction happened in 2012.
The condonation doctrine still applies in her case, the CA said.
Citing the Supreme Court ruling in Giron v. Ochoa, the CA said the condonation doctrine can apply to a public officer who was elected to a different positioon provided that the “body politic electing the person to another office is the same.” Cebu has six districts and Garcia was elected as congresswoman of the third district.
The body politic that voted Garcia as congresswoman only makes up one-sixth of the people who voted for her as governor, the CA said, “the 1/6 voters still belonged to the same body politic which voted for her as governor.” “So, while the voters were not entirely the same, still, the voters thereof were not entirely different,” the CA said.
The CA also considers the literal meaning of condonation, which means “liberality, absolution and forgiveness which should be applied” in Garcia’s case.
“The Court hereby finds that petitioner Garcia’s election as representative of the third district of Cebu in the 2013 elections served as a condonation or pardon of whatever infraction or misconduct she may have committed during her prior term as Governor.
“The people are deemed to have accepted and acknowledged her transgressions but still believed in her capability to represent them in the lower house of Congress and participate in crafting national legislations.” The decision was signed by Associate Justice Dorothy Montejo-Gonzaga and concurred by Associate Justices Edgardo delos Santos, Pamela Ann Abella Maxino, Marilyn Lagura-Yap and Edward Contreras.
Maxino and Lagura-Yap wrote down “I dissent” beside their signatures.
Garcia is seeking a fresh term as governor of Cebu come May 13. She was thrice elected governor of Cebu, in 2004, 2007 and 2010. Since the law prohibits a fourth consecutive term for the same position, she ran for, and got elected, congresswoman of Cebu’s third district in 2013 and again in 2016.