EXPLAINER: Acting Mayor Raymond Garcia can perform all the powers and duties of the mayor, including the power, without 30-day wait, to hire, fire, suspend employees. And full throttle it is, as City Hall business goes on without Mike Rama.

EXPLAINER: Acting Mayor Raymond Garcia can perform all the powers and duties of the mayor, including the power, without 30-day wait, to hire, fire, suspend employees. And full throttle it is, as City Hall business goes on without Mike Rama.
Photo by Amper Campaña

TAKEAWAYS from the temporary transfer of power following the May 8, 2024 preventive suspension of Cebu City Mayor Michael Rama by the Ombudsman:

[1] THE QUESTION OF SERVING THE ORDER. Vice Mayor Raymond Alvin Garcia assumed as acting mayor Monday, May 13, 2024, after some lack of clarity on whether the suspension order was deemed served and the shift of authority would begin.

The Department of the Interior and Local Government-Central Visayas (DILG 7), through Regional Director Leocadio Trovela, set off the doubt when he admitted that his team failed Friday, May 10 to serve the order in the offices of the mayor, city administrator, and the city assessor where the suspended officials and employees work.

People wondered if VM Garcia, who was notified by DILG about the succession, could assume as acting mayor even if the mayor was not served the order. Trovela told media the DILG “intention” was to serve the order personally. Literally personally, that is, since the rules allow substitute service, in which the notice is merely left or posted without confronting the suspended person.

The question became moot when Monday VM Garcia started the duties of acting mayor (AM) and there was no resistance or noise from Rama. No holing in or barricade at City Hall and no lawsuit filed by the suspended officials. So the temporary transfer of power is in place.

AM Garcia topped his activities with presiding at the public and highly visible flag-raising ceremony in front of City Hall and an order to pay the four employees whose 10-month-delayed salary prompted the filing of civil and criminal complaint against Rama, his city administrator Colin Rosell, Rosell’s wife officer-in-charge assessor Maria Theresa Rosell and five of her key personnel.

[2] EXTENT OF POWERS. Being speculated on before AM Garcia took over was the extent of his authority, specifically its limits. Questions then included whether he could appoint an acting city administrator. He could and he did: Atty. Joycee Batucan, with acting chief of staff Sam Salimbago and acting assessor Leizl Calamba.

The Local Government Code (Section 46-a) provides that the vice mayor acting as mayor “can perform all the powers and duties pertaining to the office of the mayor, except the power to appoint, suspend or dismiss employees, which can only be exercised if the period of temporary incapacity exceeds 30 working days.”

[3] THE 30-DAY CAP. Suspended mayor Rama is temporarily incapacitated for six months; that’s way beyond the law’s benchmark of one month. Thus the acting mayor “may already proceed to exercise such functions so as not to impair the delivery of vital public services.”

That must clarify a Friday news report that a DILG official with the team -- which tried but failed to serve the order against Rama -- publicly advised the acting mayor to wait for 30 days before exercising his hire-fire-suspend powers. Garcia doesn’t have to and he didn’t.

A DILG legal opinion (#23, 2012 series, dated March 7, 2012) said the acting mayor’s power over employees “applies without any distinction, subject to Civil Service Commission rules.”

[4] ACTING VM ‘NOT AUTOMATICALLY’ COUNCIL PRESIDING OFFICER. The highest ranking City Council member, as acting vice mayor, “can perform all the duties and powers pertaining to the office of the vice mayor.”

But the DILG opinion, citing Gamboa vs. Aguirre (GR #134213, July 20, 1999), said the function of presiding officer “is not automatically given to the acting vice mayor.” In that situation, the Local Government Code provision (Section 49-b) applies, under which majority of the members present, there being a quorum, shall elect from among themselves a temporary presiding officer for the session.

It has been the practice though in the City Council for the No. 1 councilor -- Dondon Hontiveros, who polled in 2022 elections 178,953 votes in the south, against Nestor Archival’s 119,456 in the north -- to take over as acting vice mayor and acting Sanggunian presiding officer. There must be a vote on the presiding officer slot, as required by jurisprudence, but it must have already become a habit to the current Sanggunian, since then vice mayor Rama had kept substituting as acting mayor in the months leading to then mayor Edgardo Labella’s death on November 19, 2021.

[5] CAUTION ON ACTING MAYOR’S AND ACTING VM’S JOBS. Can the vice mayor, now acting mayor, simultaneously exercise the duties of the VM’s office? The nature of the acting mayor’s duties calls for a full-time occupant, says the DILG opinion. The doctrine must equally apply to the acting vice mayor, who’s the top-ranking councilor. No performance of dual functions.

Garcia cannot simultaneously perform the functions and duties in both the offices of the mayor and vice mayor “because it would intermingle two separate powers, i.e., executive and legislative, which has been delineated and vested by law to two separate offices, to provide a system of check and balance, thereby ensuring a better delivery of service.”

Not allowed even during the six-month transfer of power.

[6] FIRST ORDER OF BUSINESS. News reports have been varied on the ranking of the acting mayor’s first day.

One story said AM Garcia’s first order of business was the appointment of his city administrator and chief of staff and making the assessor’s office, where the complaint against suspended mayor Rama originated, “function properly” under a designated officer-in-charge (OIC) assessor. Another story said Garcia ordered the release, not later than next Monday, May 20, of the four employees’ unpaid salaries, six months worth of the initially reported 10-months pay. He gave the order during a visit to the assessor’s office, in the morning of his first day as acting mayor, so still within his top priorities.

On the same day, he was reported to have also ordered City Hall’s human resources department to investigate the delay, a sensitive task as it would suggest the suspended mayor had not looked into it, unless the CHR already did so and would merely submit a copy of its finding.

Still a fresh look at the incident could help City Hall avert a similar confusion, which was how a Rama official explained the non-payment. The four employees had refused their reassignment and no supervisor would sign their payroll, he said. Still, it was a snafu that should’ve been resolved by a higher official like the mayor or the city administrator.

[7] GOVERNANCE UNDER BARUG CONTINUES, as the acting mayor is the suspended mayor’s elected vice mayor, both belong to the same party, and the Rama-Garcia tandem remains or at least has not broken up.

The next six months though would be critical. People would watch if the political partnership, although showing some cracks, would hold until after the filing of COCs or certificates of candidacy.

A lot of it could depend on how Barug, absent the mayor and party chief, would govern the city. The half-year period, short as it is, could be critical not just for Mike Rama but also for Barug.

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