REPUBLIC OF THE PHILIPPINES. sage DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT i A. Francisco Gold Condominium it. CENTRAL RECIRE EDSA Cor. Mapagmahal St., Diliman RELE SIGNATURE: Quezon City eheai TT | vi Bi] bl LEGAL SERVICE conTnDL WO, 0.27 Legal Opinion No. 40 s. 2011 JUL 15 2011 HON. SALVADOR F. NACARIO Sangguniang Bayan Member Calbiga, Samar Dear $8 Member Nacario: This hos reference to your letter dated 03 June 2011 requesting clarification on whether the “deprivation” of travelling allowance and one (1) job order employee for the current year by Mayor Melchor F. Nacarro, Calbiga, Samar, are within the limits and bounds of law. Per your letter, you represented that the Sangguniang Bayan of Calbiga, Samar approved their 2011 Annual Budget with an agreement on record that each Sangguniang Bayan Member is entitled to Php 150,000.00 travelling allowance and one (1) job-order employee for the current year. When Mayor Melchor F, Nacario applied loan with DBP-Catbalogan, Samar Branch in the ‘amount of Php18,000,000.00 for his Farm-to-Market Road Project, you, together with two (2) other colleagues, vehemently opposed said loan, without citing any reason therein. As a punishment for their earlier opposition, according to you, Mayor Nacatio continuously denied your travels as well as the ‘appointment of job order employee. There are two (2) issues you raised in your letter, namely: 1. Whether or not the previously agreed travelling allowances for each sangguniang bayan member may be denied by Mayor Nacario for reasons, such as SB Member ‘Nacario’s opposition to the loan applied for by Mayor Nacario; and 2% Whether or not their previously agreed appointment of job order for each sangguniang bayan member may be denied by Mayor Nacario for the same reason mentioned above. ‘Anent your first query, please be informed that the Department has been consistent in its ‘opinion that if the travel of the Members of the Sangguniang Bayan is chargeable to the general fund of the Municipality, the approval of the Mayor is discretionary because under Section 444 (b)(1)(xv) of the LGC of 1991, the Municipal Mayor, being the chief executive who exercises general supervision and control over all programs, projects, services, and activities of the municipal government, is given the sole prerogative to authorize official trips of municipal officials and employees outside of the municipality. This is part and parcel of the executive function of the Municipal Mayor. ‘On the other hand, ifthe travel is chargeable to the Sanggunian funds, the recommendation of the Vice Mayor Is necessary and the approval of the Mayor becomes a ministerial function because tunder Section 445 (o)(1) of the same Code, the Vice Mayor is given the authority to sign all ‘expenditures appropriated for the operation of the Sangguniang Bayan. The Sanggunian, through the Vice-Mayor, is actually acting as a legislative body of the local government unit and operating on a separate budget though forming part of the entire budget of the municipality. As such, it becomes a ministerial duty on the part of the Municipal Mayor to authorize, including the isuance of corresponding travel order thereto to members of the Sangguniang Bayan and its employees whenever the Vice Mayor had already issued his/her prior recommendation and had already signed the warrant drawn from the Sanggunian funds in the municipal treasury for all expenditures necessary for such official travel. Being ministerial, the Mayor cannot refuse in affixing his signature in approving the travel order once the Vice Mayor had already made his recommendation and if he so persis, he ‘may be compelled by filing « Petition for Mandamus,- 2 However, the Department is fully aware that the remedy of Mandamus entails a long process ‘and thus not an advisable immediate remedy on the problem given the fact that most of the travels applied for by the members of the Sanggunian are to attend previously scheduled seminars, meetings ‘and workshops in their official capacities. ‘Thus, in DILG Opinion No. 8, series of 2010, the Department opined that in case the Municipal Mayor has unjustifiably refused in affixing his signature in the travel order, the sanggunian members may already go on official travel even without the Mayor's signature therein. The Department explained in this wise: “(1)t could never have been the intention of Congress to give wide latitude of powers to the Municipal Mayor under Section +44 (b)(1)(xv) of the Local Government Code of 1991 to authorize official trips outside of the municipality of municipal officials and employees 0 as to include the unjustifiable withholding of his signature approving the travel order thereby paralyze the normal operation of the sangguniang bayan.” With regard to the second query, the Supreme Court, in the case of Ramon M. Atienza vs. Jose Villarosa: (G.R. No. 161081, 10 May 2005) ruled that “while the Governor has the authority to appoint officials and employees whose salaries are paid out of the provincial funds, this does not extend to the officials and employees of the Sangguniang Panlalawigan because such authority is Jodged with the Vice-Governor. In the same manner, the authority to appoint casual and job order employees of the Sangguniang Panlalawigan belongs to the Vice-Governor. The authority of the Vice-Governor to appoint the officials and employees of the Sangguniang Panlalawigan is anchored on the fact that the salaries of these employees are derived from the appropriation specifically for the said local legislative body.” In DILG Opinion No. 31, series of 2009, this Department differentiated the two (2) kinds of job orders and extensively discussed therein on who between the Vice-Mayor or Mayor is the proper ‘authority to appoint job order employees. On a final note, as to your request to furnish you with copies of related DILG Legal Opinions ‘and jurisprudence, attached is a photocopy of the aforesaid DILG Opinion No. 31, series of 2009. You can avail a copy of DILG Opinion No. 8, series of 2010 by visiting our website at dilg.gev.ph while the ‘Atienza case may be downloaded thru the internet. We hope we have sufficiently guided you on the matter. Very truly yours, Arty. JESR6 8. yoque Vv Director Il ws \ Me Ee memancyeoc DILG-REGION Vit Kanhuraw Hil, Tacloban City Mico Calbiga, Samar