Seares: Labella can’t fire MCWD board? Tomas lawsuit raises the issue

AN interesting, if not intriguing, question brought to the surface by criminal and administrative charges former Cebu City mayor Tomas Osmeña filed Monday (Feb. 3) against Mayor Edgardo Labella and LWUA Chief Jeci Lapus is this: Who has the power to dismiss directors of Metropolitan Cebu Water District (MCWD)?

Local Water Utilities Administration Acting Administrator Jeci Lapus declared in his Dec. 5, 2019 letter to Mayor Labella that the power to appoint the directors didn’t give the power to remove them. While generally the power to appoint carries automatically the power to dismiss, that doesn’t hold true in the case of water districts, the letter said. The Provincial Water Utilities Act (Presidential Decree 198) of 1973 expressly states an exception to the rule, Lapus said.

‘No-objection’ letter

Wait. Didn’t Lapus, in an Oct. 1, 2019 reply to the mayor’s letter in September, affirm the mayor’s authority to replace the directors? Labella called it LWUA’s “no-objection letter.”

News media reported that the LWUA chief “affirmed the right” of the mayor to terminate the MCWD directors when he said the mayor can do so “within the bounds of the law, consistent with the legal requirement” that the dismissal shall be “for just cause.” Referring, of course, to Section 3 (b) of PD 198, which means the mayor shall give them due process to determine the “just cause.”

Notice for explanation

In an Oct. 24, 2019 letter, LWUA issued a notice for “explanation on the subjects of the termination,” some nine days after Mayor Labella in an Oct. 15 letter dismissed the five directors “for failure to provide solutions” to the water crisis.

It’s not known if Mayor Labella replied to the LWUA request for an explanation. But in a Dec. 5, 2019 letter, LWUA wrote of the appointing power not having the authority to fire. Lapus said the law explicitly says that. (Actually, the law does not; it merely says LWUA shall have the right to review and approve the dismissal. Doesn’t that mean the mayor can fire, not just hire, but the firing needs LWU’s approval?)

It looked odd

So who has the authority to dismiss the MCWD directors for just cause? Apparently, LWUA itself exercised that power. After its explanation of the law about the right to fire in its Dec. 5 letter, LWUA declared that the directors were considered terminated because of the dissatisfaction of eight local governments-–whose constituents are served by MCWD-–in the directors’ performance. In effect, the water administration ruled the mayor had no authority to fire, then proceeded to formalize the firing.

It surely looked odd that LWUA, in reviewing and approving the mayor’s order of dismissal, exercised the authority that it was supposed only to review and approve or disapprove.

Due process met?

What happens to the due process which would’ve determined the presence or absence of “just cause” for the dismissal? Three of the fired directors chose to slug it out, filing a petition with the Regional Trial Court to nullify the mayor’s order. That, after they had ignored a notice LWUA asking for their side of the controversy. “What for?” one director shot back in the news media.

Would that satisfy the due process that the director’s court petition and Osmeña’s complaint with the ombudsman raise as “fatal flaw” of Labella’s order?

Drought season ahead

The litigation in two separate forums will decide that. But that expectedly will take time. A TRO or permanent injunction may even complicate things and worsen the capability of MCWD to serve its public.

Meantime, MCWD runs without a board of directors or possibly with two boards of directors, depending upon how the controversy will play out.

Meantime, no serious work is being done to solve the water shortage, two or three months before the season of drought will come again.

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