Court of Appeals of the Philippines | PHOTO: Official website of the Court of Appeals / ca.judiciary.gov.ph
MABALACAT CITY, Pampanga – The 8th Division of the Court of Appeals (CA) has affirmed the Office of the Ombudsman’s decisions dismissing Mexico town Mayor Teddy Tumang and three former municipal officials for buying base course and other construction materials way back in 2008 without competitive bidding.
In its 32-page decision dated July 18, 2024, a copy of which was obtained by the Inquirer recently, the CA affirmed the Ombudsman’s 2022 and 2023 decisions finding Tumang, former municipal engineer and bids and awards committee (BAC) vice chairman Jesus Punzalan, former administrative officer Luz Bondoc, and former municipal accountant Perlita Lagman administratively liable for grave misconduct and denying their motion for review.
READ: Ombudsman orders dismissal of Pampanga town mayor, 3 others for anomalous purchases
The Field Investigation Bureau of the Office of the Deputy Ombudsman for Luzon (FIB-OMB) filed complaints against the four individuals on January 12, 2018 for buying base course and other construction materials for the repair and concreting of village roads from Buyu Trading and Construction through shopping, an alternative mode of procurement.
Base course is composed of granular materials like crushed aggregate, gravel, recycled asphalt and soil used as foundation for roads and driveways.
In the complaint, the FIB-OMB alleged that sometime in 2008, the municipality of Mexico, Pampanga bought the materials from Buyu in violation of Republic Act 9184 known as The Government Procurement Reform Act. It said the procurement should have been done through competitive bidding, instead of shopping.
The FIB-OMB said canvassing or request for quotation of materials from at least three dealers and the award of contract was already made sometime in May 2008, which is ahead of the BAC resolution authorizing the procurement through shopping. The resolution was not issued until December 5, 2008.
It said Tumang performed procurement duties although he was prohibited to become a BAC member.
The FIB-OMB said the funds for the payment of the materials totalling P469,924 in checks and P303,199 in disbursement vouchers were released and approved by Tumang without the required signature and certification of the municipal accountant.
“All these transactions were awarded and paid to Buyu, notwithstanding its questionable capacity as a supplier as established by the fraud auditors of the Commission on Audit (COA),” it said in the complaint-affidavit.
It said that COA also questioned the adoption of shopping without satisfying the conditions laid down by RA 9184 and its implementing rules and regulations and the disbursement of funds without the necessary approval of the municipal accountant which violates Presidential Decree nos. 1445 and 344 and the Local Government Code of 1991.
On March 14, 2018, the four municipal officials filed a joint counter-affidavit, denying the accusations against them and saying that each order of the purchased base course and other materials did not exceed P250,000, which, they say, is allowed in shopping mode of procurement under RA 9184.
On November 21, 2022, the Office of the Ombudsman issued a decision finding substantial evidence against the respondents for grave misconduct and meted the penalty of dismissal from service, cancellation of eligibility, forfeiture of retirement benefits, perpetual disqualification from holding public office and bar from taking civil service examinations against them.
On October 20, 2023, the Ombudsman issued another decision against Tumang, finding him administratively liable for grave misconduct for the same offense and imposed the same penalties against him.
The respondents sought reconsideration of the Ombudsman’s decisions, saying that adopting shopping “is justified in order to promote economy and efficiency, given the exigencies of the times and the needs of the constituents of the Municipality of Mexico, Pampanga.”
They also claimed that their acts only amounted to “a mere error in judgment which does not warrant the finding of grave misconduct.”
Tumang, in a separate motion for reconsideration, said that the Ombudsman had committed reversible error in not applying the condonation doctrine although the complaint against him was filed before he was re-elected as mayor.
Under the condonation doctrine, an elected public official cannot be removed from office based on administrative misconduct committed during a previous term, as his or her re-election to office serves as condonation of his past misconduct.
Both motions were denied by the Ombudsman, prompting the respondents to file a petition for review with the CA, specifically if they are administratively liable for grave misconduct and if the defense of condonation doctrine invoked by Tumang was sound.
In the decision penned by Associate Justice Myra Garcia-Fernandez and concurred in by Associate Justices Walter Ong and Jose Lorenzo Dela Rosa, the petitions filed by Tumang, Punzalan, Bondoc and Lagman were found to be “devoid of merit.”
It said the alternative mode of shopping may be resorted to only when there is unforeseen contingency requiring immediate purchase and if the amount does not exceed P50,000 or if the procurement of ordinary or regular office supplies and equipment involves amount not exceeding P250,000.
The appellate court said the four individuals’ contention that the base course materials were supposedly used in preparation for expected damages to village roads brought about by heavy monsoon rains cannot be considered as an unforeseen contingency. It also said that base course and other construction materials cannot be considered as ordinary or regular office supplies and equipment.
As for the condonation doctrine invoked by Tumang, the CA said that such doctrine was already abandoned by the Supreme Court in its decision on Carpio-Morales v. Court of Appeals and Binay Jr. on April 12, 2016. It said only administrative cases that happened before this date are covered by the condonation doctrine.
The CA said the petitions against Tumang were filed after April 12, 2016, making him unqualified to avail of the benefits of the condonation doctrine.
“More importantly, the Supreme Court explained in Office of the Ombudsman v. Malapitan42 that the condonation doctrine is no longer an available defense in cases filed after the finality of Carpio-Morales on April 12, 2016,” it explained.
“Wherefore, the petitions for review in CA-G.R. SP No. 181513 and CA-G.R. SP No. 182683 are both DENIED. The consolidated decision dated November 21, 2022 and consolidated order dated October 23, 2023 issued by the Office of the Ombudsman in OMB-L-A-21-0085 and OMB-L-A-22-0039, and the decision dated October 20, 2023 and order dated January 16, 2024 of the Office of the Ombudsman in OMB-L-A-18-0010 are AFFIRMED. So ordered,” the CA ruled.
The Inquirer tried but failed to get the comments from Tumang and three other former municipal officials on the appellate court’s decision.
It was learned that while the first Ombudsman decision was issued on November 21, 2022, Tumang was removed from his post only on August 25, 2023, two days after the Ombudsman tasked the Department of Interior and Local Government to serve the dismissal order against him.
For his part, Mexico vice mayor Ruding Gonzales, the current acting mayor in the town, said in a local television interview on Thursday that his town needs to be united amid the CA decision.
“Politics can wait. We should first have peace of mind, especially the municipal employees. What’s important is that we focus on our work. I also ask the barangay officials, barangay captains, and SK to set politics aside for now,” he said. INQ