Decision of the Office of the President on the administrative case against Deputy Ombudsman Emilio Gonzalez, March 31, 2011

Office of the President
of the Philippines

Malacañang

IN RE: ADMINISTRATIVE CASE
AGAINST EMILIO A. GONZALEZ III,
DEPUTY OMBUDSMAN, OFFICE OF THE OMBUDSMAN

OP Case No. 10-J-460

DECISION

The constitution mandates that “public office is a public trust.”   Public officers are enjoined to be at all times accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, and act with patriotism and justice. (Section 1, Article XI, 1987 Constitution as quoted in several cases such as Civil Service Commission vs. Cortez, G.R. No. 155732, June 3, 2004 and Villar vs. Angeles, AM. No. P-062276, February 5, 2006)

Antecedents Facts and Statement of the Case

On 23 August 2010, a dismissed police officer, former Manila Police District Police Senior Inspector (Captain) Rolando Del Rosario Mendoza, hijacked a tourist bus, and held hostage a group of twenty-one foreign tourists and four Filipino tour assistants.

Mendoza was a bemedaled police official who served the Philippine National Police (PNP) for thirty years prior to his termination ordered by the Office of the Ombudsman.  For the liberty of his hostages, Mendoza’s lone demand was his reinstatement in service.

Regrettably, the long-drawn drama ended with, the murder of eight, the injury of seven and the demise of Mendoza, a surly scorn for the institutions of a representative government.

This Office, perforce, mandated Department of Justice (DOJ) Secretary Leila De Lima and Department of the Interior and Local Government (DILG) Secretary Jesse Robredo to conduct a thorough investigation of the incident, and recommend, among others, the appropriate administrative and criminal charges against culpable individuals, public officers or otherwise.

Pursuant to his mandate, Joint Department Order NO. 01-2010 was subsequently issued, creating the Incident Investigation and Review Committee (IIRC), which was chaired by Secretary De Lima and vice-chaired by Secretary Robredo.  The IIRC conducted a series of public hearings and executive sessions, and invited several resource persons for the purpose (Investigation and Review Committee, First Report, 16 September 2010, pp. 6-7).

Ombudsman Merceditas Gutierrez and respondent Deputy Ombudsman for the Military and Other Law Enforcement Agencies Emilio Gonzalez III were duly sent invitations to take part in the proceedings (Id., page 7). Both declined, however, interposing that the Office of the Ombudsman is an independent constitutional body. (Id.).

In its First Report dated 16 September 2010, nonetheless, the IIRC made determinations based on pertinent testimonial and documentary evidence with respect to the accountability of respondent Deputy Ombudsman Gonzalez, which can be summarized as follows:

Deputy Ombudsman Gonzalez committed serious and inexcusable negligence and gross violation of their own rules of procedure by allowing Mendoza’s motion for reconsideration to languish for nine (9) long months without any justification, in violation of the Ombudsman prescribed rules to resolve motions for reconsideration in administrative disciplinary cases within five (5) days from submission.  The inaction is gross, considering that there was no opposition thereto. The prolonged inaction precipitated the desperate resort to hostage-taking.

Moreso, Mendoza’s demand for immediate resolution of his motion for reconsideration is not without legal and compelling basis considering the following:

a) PSI Mendoza and four policemen were investigated by the Ombudsman involving a case for alleged robbery (extortion), grave threats and physical injuries amounting to grave misconduct allegedly committed against a certain Christian Kalaw. The same case, however, was previously dismissed by the Manila city Prosecutors Office  for lack of probable cause and by the PNP-NCR Internal Affairs Service  for failure of the complainant (Christian Kalaw) to submit evidence and prosecute the case  On the other hand, the case which was filed much ahead by Mendoza et al. against Christian Kalaw involving the same incident, was given due course by the City Prosecutors Office.

b) The Ombudsman exercised jurisdiction over the case based on a letter issued motu proprio by Deputy Ombudsman Emilio A. Gonzalez III, directing the PNP-NCR – without citing any reason – to endorse the case against Mendoza and the arresting policemen to his office for administrative adjudication. He also caused the docketing of the case and named Atty. Clarence V. Guinto of the PNP-CIDG-NCR, who indorsed the case records, as the nominal complainant, in lieu of Christian Kalaw who did not even affirm his complaint-affidavit b the before the Ombudsman or submit any position paper as required.

c) Mendoza, after serving preventive suspen-sion, was adjudged liable for grave mis-conduct based on the sole and uncor-roborated complaint-affidavit of Christian Kalaw.

d) Despite the pending and unresolved motion for reconsideration, the judgment of dismiss-sal was enforced, thereby abruptly ending Mendoza’s 30 years of service in the PNP with forfeiture of all his benefits.

Deputy Ombudsman Gonzalez likewise committed serious disregard of due process, manifest injustice and oppression in failing to provisionally suspend the further implementation of the judgment of dismissal against Mendoza pending disposition of his unresolved motion for reconsideration.

For as long as his motion for reconsideration remained pending and unresolved, Mendoza was also effectively deprived of the right to avail of the ordinary course of appeal or review to challenge the judgment of dismissal before the higher courts and seek a temporary restraining order to prevent the further execution thereof.

When they received Mendoza’s demand for the release of the final order resolving his motion for reconsideration, they should have performed their duty by resolving the reconsideration that same day since it was already pending for nine months and the prescribed period for its resolution is only five days.  Or they should have acted decisively by issuing an order provisionally suspending the further enforcement of the judgment of dismissal subject to revocation once the reconsideration is denied and without prejudice to the arrest and prosecution of Mendoza for the hostage-taking.

But instead of acting decisively, they merely offered to review a pending motion for review of the case, thereby prolonging their inaction and aggravating the situation.  As expected, Mendoza – who previously berated Deputy Gonzalez for allegedly demanding Php 150, 000 in exchange for favorably resolving the motion for reconsideration – rejected and branded as trash (“basura”) the Ombudsman letter promising review, triggering the collapse of the negotiation. (Id., pp. 75-77).

Based on the foregoing, the IIRC recommended with respect to Deputy Ombudsman Gonzalez, that its findings be referred to this Office for further determination of possible administrative offenses, and for the initiation of the proper administrative proceedings (Id., page 81).

Upon a review of the findings and recommendation of the IIRC, an administrative charge was formally instituted against Deputy Ombudsman Gonzalez.

The charge states, thus:

“FORMAL CHARGE

Finding a prima face case as contained in the Incident Investigation and Review Committee Report (IIRC) dated 17 September 2010, particularly pages 73-75 thereof, this Office hereby formally charge Deputy Ombudsman Emilio A. Gonzalez III, Office of the Ombudsman, a presidential appointee, for Gross Neglect of Duty and /or Inefficiency in the Performance of Official Duty under Rule XIV, Section 22 of the Omnibus Rules Implementing Book V of E.O. 292 and other pertinent Civil Service Laws, rules and regulation and for Misconduct in Office under Section o3 of the Anti-graft and Corrupt Practices Act.

In view thereof, respondent is herby directed to submit within seventy-two (72) hours from receipt hereof, his answer under oath to the above-charges, as narrated in said IIRS Report copy which is hereto attached, together with his documentary evidence, if any.  Respondent should state therein whether he elects to have a formal investigation or waives the same.  Respondent is also advised of his right to counsel.

Any Motion to Dismiss, Request for Clarification or Bill of Particulars shall not be entertained by this Office.  Any of these pleadings interposed by the respondent shall be considered as an Answer and shall be evaluated as such. Failure of respondent to submit his answer within the herein required period shall be considered as a waiver thereof.

SO ORDERED.

In his Answer dated 4 November 2010, Deputy Ombudsman Gonzalez elected a formal investigation, without waiving his right to question the validity and propriety of the administrative proceedings.

This Office then called a Clarificatory Conference on 8 February 2011.  Despite due notice, however, respondent Deputy Ombudsman failed to appear.

Earlier, respondent submitted an “Objection to proceedings” accusing this office of having made a prejudgment of his case even before a formal investigation has been conducted.  Respondent based his objection on news items that figured in two local tabloids, Abante and Bulgar, on 4 February 2011 that he was already meted out the penalty of one (1) year suspension.

While there was absolutely no truth to the news items in question, and despite a subsequent express retraction by Mr. Raymond Burgos of Abante, in whose column said news items came out, and the Deputy Ombudsman’s own denial published in the same column, the latter chose to snub the clarificatory conference and made no amends therefor.

Respondent Deputy Ombudsman Gonzalez having been given an opportunity to be heard, the case was subsequently submitted for resolution.

The Issues

In his Answer, respondent Deputy Ombudsman contended in his defense that:

(1) This Office does not have the authority nor the jurisdiction to try the instant case, which is cognizable by the Office of the Ombudsman and/or the Sandiganbayan;

(2) There was never gross neglect of duty/inefficiency in the performance of official duties on his part prior to, during and after the hostage-taking incident; and

(3) There was no misconduct in office committed by him as he never demanded a bribe from Mendoza.

The Ruling

A. On the Disciplining Authority of the Office of the President over the Deputy Ombudsman

In his Answer, Respondent Deputy Ombudsman Gonzalez assails the jurisdiction or authority of this Office to exercise disciplinary power over him, asserting that the Office of the President is not a judicial or quasi-judicial body with authority or jurisdiction to charge or try him administratively.

Respondent Deputy Ombudsman contends that it is the Office of the Ombudsman that has the disciplinary authority over him, citing Section 21 of Republic Act No. 6770, otherwise known as the “Ombudsman Act of 1989”, which states:

Sec. 21.  Officials Subject to Disciplinary Authority; Exceptions. – The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporation and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.

Respondent argues that he is not exempt from the disciplinary authority of the Office of the Ombudsman since he is not a member of Congress nor is he removable by impeachment under Section 2, Article XI of the Constitution.

Respondent adds that under Section 15(1) of the Ombudsman Act, it is the Office of the Ombudsman that has the authority to investigate and prosecute any act or omission of any public officer or employee.

Section 15(1) of the Ombudsman Act provides:

“Sec. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties:

(1)   Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.  It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of his primary jurisdiction, it may take over, at any stage, form any investigatory agency of government, the investigation of such cases;”

xxx            xxx            xxx

Respondent’s contentions are without merit.

While it may be correct to state that the Ombudsman has disciplinary authority over respondent Deputy Ombudsman pursuant to Section 21 of the Ombudsman Act, it is not correct to say that the President is without any disciplinary power over him.

It is worthy to note that the Ombudsman’s disciplinary power over public officers is not exclusive in nature.  It has been recognized as concurrent with the power vested by law in similarly authorized heads of offices or departments (Vide: Office of the Ombudsman v. Delijero, G.R. 172635, 20 October 2010; Flores v. Montemayor, G.R. no. 170146, 25 August 2010; Office of the Ombudsman v. Beltran, G.R. 168039, 5 June 2009).

Verily, Section 8(2) of the Ombudsman Act itself expressly vests the President with the power to remove a deputy of the Ombudsman, thus:

“Sec. 8. Removal; Filling of Vacancy. –

xxx               xxx                     xxx

(2)   A Deputy, or the Special Prosecutor, may be removed from office by the President for any of the grounds provided for the removal of the Ombudsman, and after due process.[Emphasis supplied]

Since the law expressly authorizes the President to remove a deputy of the Ombudsman for any of the grounds provided for the removal of the Ombudsman, subject to the requirement of due process, it is within the authority and jurisdiction of this Office to have conducted administrative proceedings against respondent Deputy Ombudsman, to determine cause for his administrative culpability, and to impose the penalty of dismissal if the determination warrants the same.

It bears noting that respondent Deputy Ombudsman Gonzalez was given two separate opportunities to explain his side and answer the Formal Charge against him.

In the first instance, respondent was given the opportunity to submit his answer together with his documentary evidence, which opportunity respondent actually availed of.  In the second instance, this Office called a Clarificatory Conference on 8 February 2011 pursuant to respondent’s express election of a formal investigation.  Despite due notice, however, respondent Deputy Ombudsman refused to appear for said conference, interposing an objection based on the unfounded notion that this Office has prejudged the instant case.  Respondent having been given actual and reasonable opportunity to explain or defend himself in due course, the requirement of due process has been satisfied.

In a long line of cases, the Supreme Court has held that the essence of due process in administrative proceedings is simply the opportunity to explain one’s side (Catbagan v. Judge Barte, A.M. No. MTJ-02-1452, 6 April 2005; Vide: Office of the Ombudsman vs. Galicia, G.R. No. 167711, 10 October 2008; Civil Service Commission v. CA, G.R. No. 161086, 24 November 2006; Cayago v. Lina, G.R. No. 149539, 19 January 2005; Montemayor v. Bundalian, et al., G.R. No. 149335, 1 July 2003; Ocampo v. Office of the Ombudsman, G.R. No. 114683, 18 January 2000; Audion v. NLRC, G.R. No. 106648, 17 June 1999; Umali v. Guingona, Jr., G.R. No. 131124, 29 March 1999).

Held the Supreme Court, thus:

xxx “The essence of due process in administrative proceedings is the opportunity to explain one’s side or seek a reconsideration of the action or ruling complained of.  As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met.” (Montemayor v. Bundalian, supra).

Withal, where not expressly provided for by law, the power to remove or discipline may be derived under the doctrine of necessary implication from the power to appoint (C. Cruz, The Law of Public Officers, 2003 Ed., Central Book Supply, Inc., page 223). Otherwise put, the power to appoint carries with it the implied power to remove or to discipline (Aguirre v. De Castro, G.R. No. 127631, 17 December 1999; Vide: DOH v. Camposano, et al., G.R. No., 157684, 27 April 2005; Larin v. Executive Secretary, G.R. No. 112745, 16 October 1997; Bagatsing v. Herrera, G.R. No. L-34952, 25 July 1975).

In the words of the Supreme Court:

Absent any contrary statutory provision, the power to appoint carries with it the power to remove or to discipline. Since respondent was appointed by the regional director of DECS, she may be disciplined or removed by the latter pursuant to law” (Aguirre, supra)[Emphasis supplied]

Under the Constitution and the Ombudsman Act, the power to appoint the deputies of the Ombudsman is expressly vested in the President.

Section 9, Article XI of the constitution provides thus:

“Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for each vacancy thereafter.  Such appointments shall require no confirmation.  All vacancies shall be filled within three months after they occur.”

Similarly, Section 4 of the Ombudsman Act states:

“Sec. 4. Appointment. – The Ombudsman and his Deputies, including the Special Prosecutor, shall be appointed by the President from a list of at least twenty one (21) nominees prepared by the Judicial and Bar Council, and from a list of three (3) nominees for each vacancy thereafter, which shall be filled within three (3) months after is occurs, each of which list shall be published in a newspaper of general circulation.”

xxx                      xxx                        xxx

Notably, no provision in the Constitution or the Ombudsman Act effectively enjoins the President from exercising the power to remove or discipline a deputy of the Ombudsman as the latter’s appointing authority.

This implied power of the President may be starkly contrasted with his lack of the same power with respect to the Ombudsman, or the members of the Supreme Court, or the judges of inferior courts, whom the President is vested the express authority to appoint.  With respect to the Ombudsman and the members of the Supreme Court, Section 2, article XI of the Constitution expressly provides that said public officers may be removed only through impeachment. With respect to judges of inferior courts Section 11, Article VIII of the Constitution expressly provides that the Supreme Court shall have the power to remove and discipline them.

B. On the Charge of Gross Neglect of Duty and/or Inefficiency in the Performance of Official Duties

Upon a consideration of the First Report, the evidence and allegations of respondent Deputy Ombudsman himself, and other documentary evidence gathered, this Office finds that the inordinate and unjustified delay in the resolution of Captain Mendoza’s Motion for Reconsideration timely filed on 5 November 2009, or within five (5) days from Mendoza’s receipt of a copy of respondent’s Decision on 30 October 2009, amounted to gross neglect of duty and/or inefficiency in the performance of official duty.

As correctly observed by the IIRC, the delay in the resolution of Mendoza’s Motion for Reconsideration that spanned nine (9) long months constituted a flagrant disregard of the Office of the Ombudsman’s own Rules of Procedure.  The Rules require that the resolution of a motion for reconsideration be made within a period of only five (5) days from the submission thereof (Section 8, Article III, Office of the Ombudsman Administrative Order No. 17, series of 2003).

As further correctly observed by the IIRC, the delay in the resolution of Mendoza’s motion was all the more unjustified since no opposition to Mendoza’s motion for reconsideration was filed whatsoever.

In more than a single occasion, the Supreme Court has considered inferior court judges’ failure to resolve motions or pending incidents within the reglementary period prescribed by law as gross inefficiency (Vide: Perez v. Concepcion, 378 Phil. 918; Dela Cruz, et.al v. Vallarta, A.M. No. MTJ-04-1531, 6 March 2007; Arcenas v. Avelino, A.M. No. MTJ-06-1642, 15 June 2007). By analogy, this Office considers the inordinate delay of nine (9) months as constituting gross inefficiency in the performance of official duty.  After all, the protection of the parties’ right to a speedy disposition of cases is a common consideration (Re: Cases Submitted for Decision Before Hon. Meliton G. Emuslan, Former Judge, Regional Trial Court, Branch 47, Urdaneta City, Pangasinan, Resolution A.M. No. RTJ-10-2226, March 22, 2010).

In his Answer, respondent Deputy Ombudsman alleged that the resolution of Mendoza’s Motion was assigned to Graft Investigation and Prosecution Officer (GIPO) Dennis L. Garcia on 14 December 2009.  After almost four (4) months or on 5 April 2010, GIPO Garcia released the draft Order resolving the Motion.  Respondent alleged that his office received the draft of the resolution on 27 April 2010, and that on 7 May 2010 he completed his review of the draft, approved the same, and transmitted to the Ombudsman for final approval.

Attached to respondent’s Answer were copies of the receiving books evidencing receipt of Mendoza’s Motion by the Criminal Investigation, Prosecution and Administrative Adjudication Bureau (CIPAAB) of the Ombudsman (Annex “E”), GIPO Garcia’s receipt thereof on 14 December 2009 (Annex “F”), receipt of the draft Order resolving the Motion by respondent on 27 April 2010 (Annex “H”), receipt of the Military and Other Law Enforcement Offices (MOLEO) Records Section on 7 May 2010 after respondent allegedly acted on the resolution (Annex “I”), and the alleged receipt of the said Order by the Central Records Division of the Office of the Ombudsman on 19 May 2010 or 12 days later (Annex “J”).

Respondent contended that considering the number of approvals that the resolution on Mendoza’s Motion had to undergo, the period that elapsed could not be considered vexatious, capricious, or oppressive.  Respondent maintained that there was no prolonged inaction on his part since he acted on the draft Order within nine (9) calendars days from his receipt thereof.

What respondent Deputy Ombudsman conveniently failed to acknowledge is the fact that when he acted on the draft resolution of Mendoza’s motion, said motion had already languished for a period of almost five (5) months in his subordinate’s hands.  He should have acted with more dispatch, therefore, in resolving the Motion.

Moreover, in view of the fact that respondent Deputy Ombudsman has caused the enforcement of Mendoza’s dismissal pending resolution of the latter’s Motion, utmost responsibility and fundamental considerations of justice should have impelled respondent to diligently supervise his subordinate and apprise the Ombudsman of the necessity to expedite their respective official actions to avoid undue prejudice on Mendoza, an erstwhile decorated police officer who served the PNP for thirty (30) years.

As correctly pointed out by the IIRC, this Office notes that as long as his Motion for Reconsideration remained pending and unresolved, Mendoza was also effectively deprived of the right to avail of the ordinary course of appeal or review to challenge the judgment of dismissal before the higher courts and seek a temporary restraining order to prevent the further execution thereof.

Gross neglect of duty refers to negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences, insofar as other persons may be affected.  It is the omission of that care which even inattentive and thoughtless men never fail to give to their own property.  In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable (Golangco v. Fung, G.R. no. 147640, 16 October 2006).

Under the peculiar circumstances involving the disciplinary case of Mendoza, especially including the fact that the penalty of dismissal was enforced even before Mendoza could receive a copy of the February 16, 2009 Decision, respondent Deputy Ombudsman’s palpable lack of care to supervise his subordinate to act with more dispatch in his review of the resolution of Mendoza’s Motion for Reconsideration, and to apprise the Ombudsman of the delay which said resolution had already suffered amount to a conscious indifference to the consequences of the delay to the person (s) affected thereby.

This conscious indifference was highlighted when Mendoza demanded for a resolution of his case during the fateful high-jacking incident.  The following points raised by the IIRC are apropos:

“When the two Ombudsman officials [Gutierrez and Gonzalez] received Mendoza’s demand for the release of the final order resolving his motion for reconsideration, they should have performed their duty by resolving the reconsideration that same day since it was already pending for nine months and the prescribed period for its resolution is only five days.  Or if they cannot resolve it that same day, then they should have acted decisively issuing an order provisionally suspending the further enforcement of the judgment of dismissal subject to revocation once the reconsideration [sic] is denied and without prejudice to the arrest and prosecution of Mendoza for the hostage-taking. Had they done so, the crisis may have ended peacefully, without necessarily compromising the integrity of the institution. After all, as relayed to the negotiators, Mendoza did express willingness to take full responsibility for the hostage-taking if his demand for release of the final decision or reinstatement was met.

But instead of acting decisively, the two Ombudsman officials merely offered to review a pending motion for review of the case, thereby prolonging their inaction and aggravating the situation. xxx xxx xxx”

For the reasons stated above, this Office finds respondent Deputy Ombudsman guilty of gross neglect of duty.

C. On the Charge of Gross Misconduct

With respect to the charge and findings of the IIRC that respondent may be further held liable for gross misconduct for allegedly demanding from Mendoza the amount of one hundred fifty thousand pesos (P150,000.00), there is substantial evidence to support the same in the light of the circumstances surrounding the incident.  As the Supreme Court has taught us, only substantial evidence, that is, that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion is necessary in administrative cases (Vide: Adap v. Comelec, 516 SCRA 309).

As admitted by respondent himself in paragraphs 23 and 24 of his Answer, he accommodated the request of Bob Kalaw to transfer the case Mendoza which was then pending with the Philippine National Police-Internal Affairs Service, to the Office of the Ombudsman, explaining this wise:

“24. On 25 June 2008, the father of the complainant, Bob Kalaw, together with Dindo Lucindo, a family friend of the former, came to my office to request that the Office of the Ombudsman take over the case of Christian Kalaw.  They expressed their concern not just about the outcome of Christian Kalaw’s case, but the safety of the latter, considering it wad the wife of then respondent Mendoza who was serving the subpoena from the IAS.”

Apparently, on the strength of his visitor’s bare allegation, respondent, without verifying the same, encroached on the PNP-IAS’ exercise of its primary jurisdiction over the case.  And when the complaint endorsed by the PNP-IAS to the Office of the Ombudsman in July 2008 was resolved in less than seven (7) months based on the sole and uncorroborated complaint-affidavit of the alleged victim who did not even affirm the same, there is reason to believe that respondent Deputy Ombudsman had shown undue interest on the case.  Added to this is the lack of motive on the part of Mendoza to implicate him, and in statements given spontaneously.

Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer, and the misconduct is grave if it violates any of the additional elements of corruption, willful intent to violate the law or to disregard established rules (Santos v. Rasalan, 515 SCRA 97; Rodriguez v. Eugenio, 512 SCRA 489).

D. Arbitrary and Tyrannical Exercise of Authority; Betrayal of Public Trust

As hereinabove discussed, the Ombudsman Act expressly empowers the President to remove a deputy of the Ombudsman for any of the grounds for the removal of the Ombudsman.

Section 2, Article XI of the constitution expressly provides for these grounds, to wit:

“Section 2.  The President, the Vice-President, the Members of the Supreme Court, the Members of the constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Betrayal of public trust is a new ground added by the Constitutional Commission as a catch-all ground to cover all manner of offenses unbecoming a public functionary but not punishable by the criminal statutes, like “inexcusable negligence of duty, tyrannical abuse of authority, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, and obstruction of justice” (Records of the Constitution Commission, Vol. 2, page 22).

Clearly, the gross neglect of duty, gross inefficiency and misconduct committed by respondent Deputy Ombudsman is constitutive of or amounts to a betrayal of the public trust.   Put differently, had respondent Deputy Ombudsman not betrayed the trust of Capt. Mendoza, the latter would not have been compelled to resort to hostage-taking to advance his cause.  This fact cannot be denied as clearly expressed in the handwritten demand posted on the bus  “Release final decision OMB-P-A-090570-A”.

The urgency of resolving the motion on the part of Mendoza is understandable.  To reiterate, the decision dismissing him from the service was implemented even before he could receive a copy of the Decision.   At this point , a great injustice has already been committed as prior thereto, Mendoza could not file a Motion for Reconsideration with the Office of the Ombudsman nor an appeal before the Court of Appeals, and in the pendency thereof seek a temporary restraining order against the implementation  of the Decision.  Consequently, when he got to file his Motion for Reconsideration, the urgency of the matter heightened, as he had long suffered from the effects of the Decision.  These considerations cannot have escaped the respondent Deputy Ombudsman had he been circumspect in the performance of his duties.

Section 1, Article XI of the Constitution sanction, thus:

“Section 1. Public office is a public trust.  Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.”

The provision sums up the high sense of idealism that is expected of every officer of the government (J. Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, 2003 ed., Rex Bookstore, Inc., page 1108). As Justice Malcolm expressed in Cornejo v. Gabriel, G.R. No. L-16887, 17 November 1920, “The basic idea of government in the Philippines as in the United States is that of a popular representative government, the officers being mere agents and not rulers of the people, one where no one man or set of men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people whom he represents.”

Based on facts substantially established, and measured against the fundamental mandate of his public office to serve the people with utmost responsibility, integrity, loyalty, and efficiency and to act with justice, this Office finds that respondent Deputy Ombudsman Gonzalez’s gross neglect of duty, gross inefficiency and misconduct in office amounted to a betrayal of the public trust reposed in him.

WHEREFORE, in view of the foregoing, this Office finds Deputy Ombudsman Emilio A. Gonzalez III guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and hereby meted out the penalty of DISMISSAL from service.

SO ORDERED.

Done in the City of Manila, this 31st day of March 2011.

Prepared by:

(Sgd.) DIR. ROWENA TURINGAN-SANCHEZ (Sgd.) ATTY. CARLITO D. CATAYONG
Reviewed by: Recommending Approval
(Sgd.) ATTY. RONALDO A. GERON

OIC-ODESLA

(Sgd.) JOSE AMOR M. AMORADO

Senior Deputy Executive Secretary

Approved/Disapproved:

(Sgd.) PAQUITO N. OCHOA, JR.

Executive Secretary

 

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