Seares: Cebu City Council gives C2W/Megawide right to collect Carbon Market fees. Despite: Local Government Code ban, vendors' opposition, sponsor's assent. All amendments sail through in 9-3-2 vote.

Cebu City Councilors Mary Ann de los Santos (center) and Renato Osmeña Jr. (right).
Cebu City Councilors Mary Ann de los Santos (center) and Renato Osmeña Jr. (right).File photos

THE Local Government Code (Republic Act 7160 of 1991) expressly requires (in Section 130 [c]) that "The collection of local taxes, fees, charges and other impositions shall in no case be let to any private person."

The city treasurer had cautioned councilors about the ban. Councilor Mary Ann de los Santos had waved the treasurer's comment and cited a COA flag against the practice. Carbon Market vendors associations, through their leaders, had opposed it. And yes, even the sponsor of the ordinance, Councilor Renato Osmeña Jr., had yielded to de los Santos's objection and agreed that a clause allowing the grant be deleted.

(Vice Mayor and Presiding Officer Raymond Alvin Garcia: "So you are sticking to your proposed ordinance and not yielding to (Councilor de los Santos's) suggestion?" Councilor Osmeña: "No, I'm yielding to the suggestion." Councilor de los Santos: "Mr. Chair, Member Osmeña said he is yielding.")

Despite all that, the most controversial amendment, with virtually all the other proposals, were passed by the Cebu City Council during its regular session last October 18, 2023.

MAJORITY FORCE. Nominal voting was asked by Minority Floor Leader Nestor Archival Sr. who must know that the minority wouldn't have any chance to win. The result -- nine for, three against, and two abstained.

As in past exercises, two or three members of the opposition would make noise, demand for documents and answers to inquiries (in resolutions the majority wouldn't oppose) and would in some cases call for nominal voting (which the minority always loses). As always too, some councilors would skip the voting and/or the session; the CR has been a constant refuge. Good for the councilors, bad for their constituents.

Councilor Archival pleaded against what he feared the inevitable rise in cost of goods at Carbon ("mosaka gyud ang pamaliton"). He cited the "policy direction" of President Ferdinand Marcos Jr., namely, "reducing transport and other logistic costs" to bring down the prices of commodities. Mandaue City, Archival said, has imposed a moratorium on market fees, for the same purpose. In Cebu City, they were approving market fees to comply with a JVA. "The logic does not add up, Mr. Chairman."

Archival's specific targets among the amendments: the interest rate of three percent per month in case of vendor's failure to pay fees on the due date and the right of C2W to choose the replacement of vendors who vacate their stalls. He wanted the Market Authority to handle replacements; he didn't get that but managed to reduce interest rate to from three percent to two percent per month.

THE PROVISION in the amendment to the Market Code, which would allow private persons to collect fees in Carbon Market is contained in this clause: "unless otherwise provided in a public-private partnership arrangement entered into the City Government in accordance with City Ordinance 2154 or Joint Venture Ordinance."

Partly to avoid or lessen public impression that it was aimed to benefit C2W/Megawide and because an ordinance must have general application, no firm name was mentioned. Still the gate is flung open for private persons, including the ones for Carbon, to collect the fees at city markets.

LEGAL POINT, COUNTERPOINT. Councilor Osmeña had already agreed to delete the objectionable clause that de los Santos wanted struck out/ when Councilor Rey Gealon, committee on laws chairman, weighed in, apparently to stop Osmeña's conversion.

Gealon, pointing to how not to violate the law even if the City will go around it, said the treasurer may designate deputies to collect fees and charges but they shall be subject to the authority and the rules and regulations of the city treasurer. As to the JVA's impact on the collection of fees, Gealons referred generally to "laws and jurisprudence" although he didn't cite one.

Councilor de los Santos's retort: Other government officers or employees may be deputized by the treasurer but not private persons. "That is the law and that is very clear," the non-lawyer reminded the lawyer who heads the committee on laws. Why should C2W be the one to collect? "Be guided by the comment of the city treasurer," de los Santos urged, after she cited COA and "the Tokagawa case."

MANDATORY BAN. If the word "shall" in the law does not make the prohibition strong and clear enough, the qualifying phrase "in no case" must make it so.

As to the idea of deputizing collectors, they'd be deputies of the city treasurer, not C2W/Megawide. How would that meet the JVA provision for private collectors of market fees? Or would they just be treasurer's deputies in name but actually employees of the private partner? Non-lawyer de los Santos may repeat the legal dictum: "What the law prohibits directly cannot be allowed indirectly."

THE SWITCH. If the ban is mandatory, why are private persons doing the collection at Cebu Cordova Link Expressway and cashiers at Nustar Resort and Casino? Vice Mayor and Presiding Officer Raymond Alvin Garcia mentioned the two companies, with which the City has joint ventures, to correct Councilor Osmeña in his comment that this is the first JVA for Carbon. Not the first for Cebu City but the first involving Carbon.

No councilor spoke out on the difference between Carbon Market operations and the ones at CCLEX and Nustar: At Carbon Market, traditionally it has been the job of government employees to collect market fees. In businesses like CCLEX and Nustar, the fee-collection job has always been with private partners. The amended Market Code would allow the switch.

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