DILG-CAR OPINION NO.

02-04
Series of 2002.

RE: MEMBERSHIP IN THE PLEB

(Opinion rendered March 15, 2002 in response to a letter-query, dated March 11, 2002, of DILG City Director Jose O. Rapanut)

-QUERIES1. Whether or not the one-year ban on appointment imposed on candidates who lost in any election is applicable in the selection or choice of members to the PLEB. 2. Whether or not the City Vice Mayor is eligible to represent the Sangguniang Panlungsod (SP) in the PLEB.

-OPINIONApparently, the above issues arose because of the selection of former City Vice Mayor and defeated mayoralty candidate Atty. Daniel T. Farias as one of the three members to the PLEB to be chosen by the POC, and, the representation of the SP in the same Board by Honorable City Vice Mayor Betty Lourdes F. Tabanda. As represented, the selection of the former Vice Mayor to be a member of the PLEB is void since his nomination was void ab initio or void from the very beginning and that the incumbent Vice Mayor is eligible to represent the SP in the PLEB. In voiding the selection of former Vice Mayor Farias, you cited Part II, Sec. 2 of the NAPOLCOMs MANUAL OF PROCEDURE FOR THE PLEB, which states in part that:
Section 2. Composition. x x x Membership in the PLEB constitutes a public office, as such, unless allowed by law or by the primary functions of his office, a public official or employee could not be appointed or designated to the Board.

Moreover, Sec. 94(b) of the Local Government Code of 1991 is cited which provides that:
Sec. 94. Appointment of Elective and Appointive Local Officials; Candidates who lost in an election. x x x (b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year after such election, be appointed to any office in the Government or any government-owned or controlled corporations or in any of their subsidiaries.

On the other hand, in vouching for the eligibility of City Vice Mayor Tabanda, the other part of Sec. 2 of the aforementioned Manual of Procedure is likewise cited which states that the PLEB shall be composed of the following:
a. Any member of the Sangguniang Panlungsod/Bayan x x x;

At first glance, we would have concurred with your above opinion especially on the eligibility of the City Vice Mayor to represent the Sangguniang Panlungsod in the PLEB. As we all know, the former City Vice Mayor had been representing the previous SP in the PLEB. However, after a careful examination of the aforecited provisos and other applicable law provisions and jurisprudence, we have to hold otherwise. So, anent the first query, we opine in the NEGATIVE. In other words, the appointment ban is not applicable with respect to membership in the PLEB. Aside from the fact that the provisos you cited are applicable only to public officials or employees and to appointment, we believe that membership in the PLEB does not constitute public office. May we quote Sec. 43(c) of Republic Act No. 6975 (AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A REORGANIZED DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, AND FOR OTHER PURPOSES) as amended by Republic Act No. 8551 (THE PNP REFORM AND REORGANIZATION ACT OF 1998) and reiterated under Sec. 72 (c), Rule IX of the latters IRR, thus:
Sec. 43. Peoples Law Enforcement Board (PLEB). x x x (c) Compensation Membership in the PLEB is a civic duty. However, PLEB members may be paid per diem as may be determined by the city or municipal council from city or municipal funds. (emphasis supplied)

The language of the law is very clear that membership in the PLEB is a civic duty and therefore not purely governmental in nature as that of a public office. In fact the aforecited proviso of Sec. 43 was reiterated under Sec. 6, Part II of the Manual of Procedure and that the term civic duty was even defined therein as an obligation or service pertaining to a citizen as member of the community. We thus wonder why the author of the Manual inserted the aforecited provision of Part. II, Sec. 2 stating that membership in the PLEB constitutes a public office which is directly contradictory to the legal provision that membership in the PLEB is a civic duty. It is a well-settled legal principle that implementing guidelines or rules of procedure must be in accordance and not contrary to the substantive legal provisions of the laws they are to implement. In addition, we would like to emphasize that the constitutional and legal one-year appointment ban applies only to appointment to any office in the government or any government-owned or controlled corporations or in any of their subsidiaries. The selection of Atty. Farias by the POC after his nomination by the sector or group of people he has to represent in the PLEB does not mean he was appointed. Simply put, his membership in the PLEB is by virtue of his right to represent a certain sector or group of people and not because of the discretion or authority of an appointing authority. Therefore, there is no appointment to speak of. This position may be buttressed by DILG Opinion No. 122, s. 1993 wherein the former Department Legal Counsel Jacob F. Montesa opined that the membership in the Municipal Development Council of a certain losing candidate in an election does not come within the view of the constitutional and codal prohibitions on appointment as

he was not appointed but merely representing the Muntinlupa Federation of NonGovernmental Organizations in the MDC. As to the second query, while it is true that former City Vice Mayor Farias had been representing the previous SP in the PLEB, this does not mean that the representation by incumbent City Vice Mayor Tabanda of the current SP in the Board is legal. In reality, the same is contrary to the provision of RA 6975 as amended. It is very clear under Sec. 43(b)(1) of said Act, that only member of the sangguniang panglungsod/bayan chosen by his respective sanggunian shall represent the latter in the PLEB, quote:
Sec. 43. Peoples Law Enforcement Board (PLEB). x x x (b) Composition and Term of Office The PLEB shall be composed of the following: (1) Any member of the sangguniang panglungsod/bayan chosen by his respective sanggunian; (emphasis supplied)

We believe that the Vice Mayor, is not a member of the sanggunian as contemplated by law. He is just a Presiding Officer of the sanggunian. Sec. 446 and 457 of the Local Government Code of 1991 are very clear on this, quote:
Sec. 446. Composition. (a) The sangguniang bayan, x x x shall be composed of the municipal vice mayor as the presiding officer, the regular sanggunian members, the president of the municipal chapter of the liga ng mga barangay, the president of the pambayang pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members. Sec. 457. Composition. (a) The sangguniang panglungsod, x x x shall be composed of the city vice mayor as the presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members. (emphasis supplied)

The above-quoted provisions of Secs. 446 and 457 are very clear and unambiguous. There is therefore no room for construction or interpretation but for their immediate implementation. The legal intent that the vice mayor IS NOT a MEMBER of the sanggunian but is merely the PRESIDING OFFICER thereof is unequivocal. For if the law considers the vice mayor as a member of the sanggunian and at the same time presiding officer thereof, then it would have stated so - the law should not have distinctly enumerated those who should be members of the sanggunian from the presiding officer thereof. Also, in the cases of Rivera vs. Villegas, L-17835, 5 SCRA 359 and Perez vs. Dela Cruz, L-29458, 27 SCRA 587, the Supreme Court finally resolved the issue on whether or not the vice mayor is a member of the SP/SB when it ruled that the municipal/city vice mayor is not both the PRESIDING OFFICER and MEMBER of the council and, therefore, cannot vote twice. The vice mayor has NO MORE THAN the prerogatives and authority of a PRESIDING OFFICER as such and those specified by law. Likewise in the case of Felwa vs. Salas, 18 SCRA 606, the SC held that the office of the vice governor is essentially EXECUTIVE in nature whereas plain members of the Provincial Board performs functions partaking of a legislative character. The vice mayor and vice governor were not elected and qualified as MEMBERS of the sanggunian unlike the

councilors/board members who are members who have been elected and qualified as SUCH. Also in the same case, the SC emphasized that in local legislation and in Parliamentary Law and Practice, the Presiding Officer is not synonymous to MEMBER and vice versa. Though the aforecited SC rulings were rendered prior to the effectivity of the Code, we believe that the same are still prevailing as they are not inconsistent with the latters above-quoted provisions. So far, we have not yet encountered a more recent SC ruling reversing or superseding them. Thus, to reiterate the selection of Atty. Farias, former City Vice Mayor and losing mayoralty candidate in the 2001 May elections, after his nomination to the PLEB is valid as the same is not within the purview of the constitutional and codal one-year appointment ban imposed on losing candidates in any election, whereas, the representation of the SP in the PLEB by incumbent City Vice Mayor is violative of existing laws and jurisprudence, she being not a MEMBER but the PRESIDING OFFICER of the said august body. We hope to have enlightened you on the matters at issue. Our Opinion, however, is without prejudice to any opinion by higher authorities or ruling by a competent body or tribunal.

Prepared By:
TOMAS A. KIWANG, JR. Regional Legal Counsel

Reviewed By:
PATRICK D. ONUS Assistant Regional Director

Approved:
EVERDINA ECHALAR-DOCTOR Regional Director

/opinion 02-04