COMMON LEGAL ISSUES affecting BARANGAY GOVERNANCE

.
By: atty. Erwin M. Enad, MM
Apo View Hotel, Davao City.
Situation
SK election has been postponed to last Monday of October
2016 (RA 10656).
Can the barangays utilize the 10% SK Fund for projects in
2015?
DILG Memo dated
June 1, 2015
Yes. IRR of 10632 in so far as the mechanism for the utilization
of the 10% SK funds shall remain effective until such time the
IRR for RA 10656 is issued.
DILG Memo dated
June 1, 2015
Task Force on Youth Development can utilize the 10% SK Funds
in 2015 for projects, programs and activities already identified
in the 2014 Youth Devt Plan provided that said PPAs were
formulated by the TFYD and were integrated in the Barangay
Development Plan.
2009 Supreme Court Decision
Naa bay katungod ang mga tao na mamili kung asa siya nga
barangay na ma- miyembro or ma-residente?
BRGY SANGALANG V. BRGY MAGUIHAN, 2009 DECISION
FACTS: Barangay Sangalang and Barangay Maguihan of the
Municipality of Lemery, Leyte, are claiming that this certain property
are within their territorial jurisdiction.

 The Certification from Land Management Bureau of DENR states

that the subject property is within their territorial jurisdiction of

Barangay Maguihan but the people in the area prefer to belong to
Barangay Sanggalang.
Brgy. Sangalang v. Brgy. Maguihan, 2009
The area belongs to Barangay Maguihan. But the residents in
said area prefer to belong to Barangay Sangalang. Does the
decision of the residents or population matter as to which
barangay should they belong?
The Supreme Court says that
The population follows the territory and not vice versa.
The Supreme Court says that
It is the determination of the ambit and sphere of the land
area as culled in the approved barangay map that determines
the jurisdiction of the barangay and not the decision of the
populace.
DENR Map v. Assessors Certification
Cadastral Map certified by LMB of DENR (Maguihan) versus
Certification of the Provincial Assessor (Sangalang). Which
should prevail?
What the Supreme Court says
The map of the LMB-DENR is controlling. The duty of provincial
and municipal assessors is primarily the assessment of taxes
and not the survey of lands.
More credence must be given to agency primarily tasked to the
survey of lands.
NOV. 2012 SUPREME COURT DECISION
Ang maayo na tomong sa mga barangay officials pwede na ba nga
mao lang nga basehan para MAHIMONG LEGAL ang OPISYAL na
TRANSAKSYON sa BARANGAY?

 Ysidoro vs. People of the Phils.

(G.R. No. 192330, November 14, 2012)
Annual Budget of the Municipality appropriated separate funds for
Supplemental Feeding Program (SFP) and Core Shelter Assistance
Program (CSAP).
Under SFP, the municipality store sacks of rice and boxes of sardines to
be given to its intended beneficiaries.
Ysidoro vs. People of the Phils.
(G.R. No. 192330, November 14, 2012)
With the desire to help his constituents, Mayor Ysidoro allowed the use

of four sacks of rice and two boxes of sardines worth P3, 396.00 to
CSAP so that beneficiaries under CSAP will have food for their families.
Ysidoro vs. People of the Phils.
(G.R. No. 192330, November 14, 2012)
TAMA BA ANG GIHIMO NI MAYOR NGA IYANG GIGAMIT ANG ANG MGA
BUGAS UG SARDINAS UNDER SA FEEDING PROGRAM PARA IHATAG SA
MGA BENEFICARIES SA CASH FOR WORK PROGRAM NGA
NANGINAHANGLAN UG TABANG?
The Ruling of the Supreme Court
Mayor Ysidoro was CONVICTED of TECHNICAL MALVERSATION. The
Sandiganbayan and the Supreme Court held that Mayor Ysidoro
applied public property to a public purpose other than that for which it
has been appropriated by the ordinance.
PENALTY: Since his action caused no damage or embarrassment to
public service, he was fined P1,698.00 or 50% of the sum misapplied.
Defense of the Mayor Ysidoro
He is in good faith. It was the idea of the MSDO. He has
consulted the accounting department. He has no criminal
intent.
The Supreme Court answers

 It is the commission of an act as defined by the law, and not

the character or effect thereof, that determines whether or not
the provision has been violated. Hence, malice or criminal
intent is completely irrelevant.
BISAYAON TA
Dili ang EPEKTO sa imong gibuhat kung DILI ANG PAGHIMO SA ISA KA
BUHAT nga GINABAWAL sa BALAOD ang rason ngano nga ikaw pwede
ma silutan or makasuhan ug TEKNICAL MALVERSATION.
HONORARIUM
Barangay officials are paid in the form of honoraria (DBM LBC 63) and
not in the form of salary.
Honorarium is different from a salary. Honorarium is defined by the
as something given not as a matter of obligation but in appreciation for
services rendered, a voluntary donation in consideration of services
(Santiago vs. Commission on Audit G.R. No. 92284, 12 July 1991), .
Measuring Actual Service
in Barangay
Honorarium is measured on Actual Attendance in sessions, which,
for administrative convenience, is considered the actual service
rendered (DILG Opinion 105, Series of 2000).
The honorarium can, therefore, be divided into two (2) parts,
each representing each session (DILG Opinion 54, s. 2009).
Reduction or No Reduction
GENERAL RULE: The honorarium of an elective barangay official, who
fails to attend the session for reason other than the performance of
public duty, is proportionately reduced corresponding to the numbers
of sessions he was absent (DILG Opinion 35 s. 2007)
Exceptions
EXCEPTION NO. 1: No reduction of honorarium if the absence is due
to Official Business.
Situation

 A barangay kagawad failed to attend the scheduled barangay

session due to health problems.
Is there an automatic deduction to his honorarium?
No automatic deduction on honorarium when the barangay
officials concerned who did not attend the session has leave
credits.
Situation
A barangay kagawad failed to attend the scheduled barangay
session due to health problems. He doesnt have leave credits
left. Is there an automatic deduction to his honorarium?
In excess of the leave credits allowed by law, barangay officials
are not entitled to receive their honoraria.
Exceptions
EXCEPTION NO. 1: No reduction of honorarium if the absence is due
to Official Business.
EXCEPTION NO. 2: No deduction on the honorarium if the absence of
the elective barangay official can be deducted from his leave
credits/benefits.
Joint CSC-DBM Circular No. 1 s. 2004
Maximum 30 leave credits a year for barangay officials.
1.25 leave credits for each REGULAR session attended by elective
officials (2.5 per month) or 30 leave credits in a year.
Answer
Leave credits of barangay officials are cumulated up to one year
and commuted yearly.
Question
Is there a need to PRIORITIZE the allocation for the payment of
leave benefits of the barangay officials in the preparation of
the Annual Budget of the Barangay?

 Joint CSC-DBM Circular No. 1 s. 2004

Payment of leave benefits, being a statutory obligation, must
be given priority in the barangay budget subject to PS
limitation.
Situation
The barangay kagawad has been absent for three months now
and the barangay has no knowledge of his whereabouts. Is it
proper to drop his name from the payroll list?
Answer
Do not drop his name in the payroll list. That is tantamount to
removal without due process.
Include his name in the payroll list but without the
corresponding amount (DILG Opinion No. 54 s. 2009).
Situation

Only the Punong Barangay and 3 Barangay Kagawads

appeared in the session hall during the scheduled regular
session. The Punong Barangay and the 3 Barangay Kagawads
went home after they were informed that the other Kagawads
would not be present. Was there quorum in the said case?

Answer
Quorum is determined only after ROLL CALL in a session
conducted. Quorum is determined by physical presence during
a session.
Honorarium

Those who attended the session are entitled to honoraria

corresponding to that particular session.

Those who were not present are not entitled to honoraria

corresponding to that particular session (DILG Opinion
61, s. 2010).

WITHOLDING OF HONORARIUM

 The withholding of the honorarium of a Sangguniang Barangay

member who failed to render actual services due to his unauthorized
absences from the sanggunian session cannot be considered willful
and malicious considering that the same is allowed under the
law (DILG Opinion 54, d. 2009).
Increase in Honorarium
The sangguniang barangay may increase their honoraria but it takes
effect during the term of the next set of officials (Do 35 s. 2002).
Increase of honoraria of appointive barangay officials takes
effect during their incumbency. This is so because they have no
participation in the increase (DO16s2007).
Increase in Honorarium
When increase of honorarium is made by Congress (or DBM), it
takes effect immediately (Do 35, s 2002 citing Section 391).

Situation
There is a change in administration. Are appointive barangay
officials of previous administration considered TERMINATED or
REMOVED from office when they are not rehired?
Remember this
There is merely an expiration of their term of office since they
are COTERMINOUS or serving at the pleasure of the appointing
authority (CSC Opinion dated July 28, 1998; DILG MC 2002-150; DILG
Opinion 102 s. 2007).
Situation
The Punong Barangay died (or resigned) before his term
expired.
Is there a need for successor Punong Barangay to remove the
barangay secretary if he decides to appoint a new one?
Coterminous

 The death (resignation) of the former punong barangay carries

with it the expiration of the term of the barangay secretary.
No need to remove the barangay secretary as her term of office is
simply expired upon the death of the punong barangay (DILG
Opinion No. 11 s. 2012).
Section 387 (5), LGC
Punong Barangay to appoint or replace the barangay treasurer,
secretary and OTHER APPOINTIVE BARANGAY OFFICIALS subject
to approval (concurrence) by a majority of all the members of the
sangguniang barangay.
Barangay

The SOLE basis is whether the appointees possess the

qualifications and none of the disqualifications (Do17 s, 2008).

legal age; voter; actual resident

Barangay

Kinahanglan ba nga registered voter sa barangay ang usa ka

barangay secretary or barangay treasurer?

Qualified Voter v. Registered Voter

Qualified voter means the person has all the qualifications to
be a voter.
Qualified Voter v. Registered Voter
The term qualified when applied to a voter does not necessarily
mean that a person must be a registered voter (Bautista vs.
Comelec, G.R. 15479697, October 23, 2003).
Qualified Voter v. Registered Voter
To be elected as punong barangay or barangay kagawad, you
must be a registered voter in the barangay where you intend to be
elected (Section 39, RA 7160).

 To be appointed as barangay secretary or treasurer, you must be a

qualified voter (Sections 394 and 395 of the Local Government
Code).
NON-CONCURRENCE IF NO BASIS
If the non-concurrence by sangguniang barangay of the
appointment is without basis, in fact and in law, they may be
opening themselves to possible criminal and administrative
cases against them (DILG Opinion 17 s. 2009).
PENDING CONCURRENCE

Pending concurrence, the appointee holds temporary

appointment (DILG MC 2002-150). He can now start
working.
Question

Does the Punong Barangay have the power to administer oath?

Limited Power to Administer Oath
The power of the punong barangay to administer oath is limited
and confined to matters relating to proceedings in the
implementation of the Katarungang Pambarangay (DILG Opinion
88, s. 1995 citing Sections 400 and 420 of the Local Government
Code).
Questions
Does the Punong Barangay have the power to create Barangay
Positions?
Question
Does the Sangguniang Barangay have the power under the Local
Government Code to create new barangay positions?
Category of Barangay Positions
Barangay positions created by National Laws.

Elective Barangay Officials (Sec. 387; 389;390 of LGC)

Barangay Secretaries and Treasurers (394;395 of LGC)

Indigenous Peoples Mandatory Representatives (RA 8371)

Category of Barangay Positions

Barangay positions created by sangguniang barangay thru an

ordinance:

BHW, BRK, BNS, Day Care Workers, Barangay Clerk, Barangay

Driver, Barangay Administrator, etc.

Legal Basis
Under Section 387, the sangguniang barangay may create such
other positions or offices in accordance with the needs of public
service.
The creation is subject to the PS limitations under the Local
Government Code.
Questions
Does the Punong Barangay have the power to create Barangay
Positions?
Legal Basis
The Punong Barangay has no authority to create any barangay
office or position in the barangay.
The creation of offices in the barangay is granted exclusively granted
to the legislative branch or the Sangguniang Barangay (DILG Opinion
30 s. 2012).
Legal Basis
Under Section 387, the Sangguniang Barangay has the sole
prerogative of deciding whether or not create new barangay positions
(DILG Opinion 30 s. 2012)
Creation is by way of ORDINANCE.
PUBLIC OFFICE

 Public office is the right, authority, and duty created and

conferred by law (Aparri vs. Court of Appeals, 127 SCRA 231)
Qualifications for the Position
Such power to create barangay positions includes the right to
prescribe the qualification standards of the positions to be
created and the duties, powers and functions of the incumbent (DO 53
s. 2007; DO 43 s. 2008 citing Sec. 396 of the LGC).
Qualifications for the Position
The qualifications, duties, and functions of all other barangay
officials shall be governed by Barangay Ordinances (Section
396, LGC).
Basic Qualifications of Barangay Functionaries
Legal Age
Voter
Resident of the Barangay
Question
Is it necessary that the BRK must be resident of your
barangay?
Answer
It depends on the barangay ordinance creating the position of
BRK. If it says that BRK must be resident of the barangay, then such
requirement is mandatory.
Concurrence New Position
Requirement of concurrence on APPOINTMENT or REMOVAL of a
barangay official depends on the barangay ordinance creating the
position (DO 34 S. 2004)
ABOLITION OF BARANGAY POSITIONS
The barangay, by way of an Ordinance, can abolish positions it
has created by way of an ordinance.

 The barangay cannot abolish positions created by the Local

Government Code (Do102, s. 2007)
Question
Under the Local Government Code, how many BARANGAY
TANODS are required to be appointed in every barangay?
Barangay Tanods
The law pegs the number of barangay tanods at maximum 20
members. The law says not more than 20.
It did not provide for the minimum but it provides for the maximum.
What Sec. 393 (d) of the Local Government Code says
All duly appointed members of the barangay tanod brigades, or
their equivalent, which shall number not more than twenty (20) in
each barangayshall be grantedbenefits during their incumbency
chargeable
Question
PWEDE BA MAKA-APPOINT SI KAPITAN UG IYANG MGA PARENTE
SA MGA BARANGAY POSITIONS?
NEPOTISM
General Rule: Rule on Nepotism is not applicable in the barangay.
barangay positions are considered non-career positions (DILG
Opinion 08, Series of 2005).
NEPOTISM
Exception: Appointment of barangay secretary and treasurer
who must not be relative within the 4th degree of consanguinity or
affinity to the Punong Barangay (394 and 395.
NEPOTISM
Consanguinity blood relative. Parents (one
degree); bro or sis (2nd degree); uncles (3rd degree);
first cousin (4th degree)

 Affinity- relationship of the husband to the blood

relatives of his wife.
Exercise your mind
Can the Punong Barangay appoint his Sister-in-Law as Barangay
Secretary?
Can the Punong Barangay appoint his First Cousin as Barangay
Clerk or Tanod?
Exercise your mind
Can the Punong Barangay appoint his First Cousin as Barangay
Secretary?
Can the Punong Barangay appoint the Son of his First Cousin as
Barangay Secretary?
Can punong barangay appoint his BILAS as barangay secretary
or treasurer?
Answer
He can appoint his bilas as barangay secretary or treasurer
since neither the latter is related by blood to him nor to his
wife.
UNDERSTANDING PASS THRU FEES (ILLEGAL FEES)
Question
May the Sangguniang Barangay impose toll fees for vehicles
passing through their barangay?
Allowed Fees
LGUs may regulate the USE of roads or other facilities through the
IMPOSITION OF FEES provided that it is FUNDED and
CONSTRUCTED by the local government unit (Section 155, RA 7160).
Question
May the Sangguniang Barangay impose toll fees upon goods
passing through the barangay?

 Pass Thru Fees

LGUs are prohibited from imposing taxes, fees and charges
and other impositions upon goods passing through their
territorial jurisdiction in the guise of tolls (Section 133 (e), RA
7160).
Actual Situation
Barangay has an ordinance imposing toll fee on vehicles
passing through the barangay road owned and operated by the
said barangay. The rates for use of the road depends on the
types of goods loaded on the vehicle. Does the imposition of
fee have legal basis under the Ra 7I60?
Answer
No. The toll fee imposed is a pass thru fee. It is imposed on the
goods loaded on the vehicle and not really on the use of the
barangay road (DILG Opinion 19 s. 2012).
Barangay is allowed to impose
Charges for the operation of public utilities owned, operated and
maintained by the LGU within its jurisdiction (Section 154).
Service fees and charges for services rendered, at a
reasonable amount (Sec. 153)
Barangay is allowed to impose
Toll fees for the use of public road FUNDED AND CONSTRUCTED
BY THE local government unit concerned (Section 155, RA
7160).
Considered as Illegal Collections
Those imposed by the LGUs not covered by specific and common
taxing powers.
Those imposed under Section 133 of the Local Government Code (pass
thru fees)

 Those imposed by the LGU absent any ordinance directing the

imposition of the same (DILG Opinion 16, s. 2012).
RA 10632 - SK ELECTIONS/FUNDS
SEC. 4. Use of 10% Sangguniang Kabataan Fund. Until the new
set of officials have been duly elected and qualified, the sangguniang
barangay shall use the sangguniang kabataan fund SOLELY for youth
development programs.
Draft IRR (Use of SK Fund)
SK funds shall be allocated as follows

Capacity Building

Health Services and Adolescent Repro. Health Program

Out of School Youth Program Socio-cultural and sports

development

Disaster Preparedness and Climate Change Adaptation

Other youth-related development projects

MANDATORY IP REPRESENTATION IN THE BARANGAY

Question
Kinahanglan ba dyud mag census o ihapon ang mga lumad sa
barangay para mahibaw-an kung angay butangan ug IP
mandatory representative sa sangguniang barangay?
IP REPRESENTATION
There is a need to compute the MINIMUM THRESHOLD of IP
population in local government units to allow mandatory
representation in the local sanggunians (DILG-NCIP JMC 001 s.
2011).
Formula to determine IP Representation

(1) Population of barangay as used in IRA divided by the

number of sanggunian members of the barangay (9
members); or

(2) the ICCs/IPs land area computed at 5% of the total

land area of the LGU (Section 3.2).

SAMPLE COMPUTATION
BARANGAY ELIZALDE, MACO, COMVAL
IRA Population/no. of sanggunian members
4275 /9 = 475
475 is minimum number of IPs to comply with the first formula.
SAMPLE COMPUTATION
BARANGAY BANTACAN, NEW BATAAN
IRA Population/no. of sanggunian members
3587/9 = 399
Brgy. Bantacan must have at least 399 lumads to comply with
the first formula.
SAMPLE COMPUTATION
BARANGAY BACUNGAN, MAGSAYSAY
IRA Population/no. of sanggunian members
2328 /9 = 259
259 is minimum number of IPs to comply with the first formula.
Fund Allocations
Local sanggunians are required to allocate funds in their
annual appropriations covering the salaries and appropriate
benefits and/or emoluments of the IPMRs (Sec. 11, Title II,
NCIP A.O. No. 001-2009; DILG Opinion No. 07 s. 2013 dated
February 22, 2013).
LEGITIMACY ISSUE (Selection Process)
It is for the court to resolve the issue of legitimacy of the
selection process of the IPMR. The COA issued by the NCIP is

presumed to be valid until declared otherwise by a competent

court (DILG 20 s. 2012; NCIP-XI Opinion June 12, 2012).
QUESTION
ADUNA BA TULUBAGON ANG MGA BARANGAY OFFICIALS KUNG
DILI SILA MOGAHIN UG BUDGET PARA SA INDIGENOUS PEOPLES
REPRESENTATIVE (IPMR) SA SANGGUNING BARANGAY?
LOQUIAS vs. OMBUDSMAN
G.R. No. 139396. August 15, 2000
The municipality failed to allocate funds in its annual budget the
monetary benefits for public health personnel as a mandatory
statutory obligation.
Aggrieved employees filed a criminal case against the Mayor, Vice
Mayor, Councilors and Budget Officer of the municipality for violation of
Section 3 (e) of the RA 3019 or the Anti Graft and Corrupt Practices Act.
DEFENSE OF THE LOCAL OFFICIALS
LACK OF FUNDS of the Municipality
Municipality had incurred an OVERDRAFT
The failure to give salary increases and other Magna Carta
benefits were due to circumstances BEYOND THEIR CONTROL
and not due to any manifest partiality, evident bad faith or
gross inexcusable negligence on their part
Supreme Court Ruling
Office of the Ombudsman-Mindanao found probable cause to conclude
that the crime of violation of Section 3 (e) of RA 3019 has been
committed by respondents Mayor, Vice-Mayor, members of the
Sangguniang Bayan and Budget Officer
Supreme Court affirmed the findings of the Office of the OmbudsmanMindanao.
Supreme Court Ruling

 Supreme Court affirmed the findings of the Office of the OmbudsmanMindanao that there is a probable cause to conclude that the crime of
violation of Section 3 (e) of RA 3019 has been committed by
respondents Mayor, Vice-Mayor, members of the Sangguniang Bayan
and Budget Officer
Be Guided
Refusal by the LGU to appropriate in their annual budget the
amount considered as statutory obligations is violation of
Section 3 (e) of Republic Act 3019, otherwise known as AntiGraft and Corrupt Practices Act. (Loquias v. Sandiganbayan
(2000); Gallardo v. People (2005)
Firearms in the Barangay

A punong barangay is entitled to possess and carry firearms within

is territorial jurisdiction in the performance of his peace and order
functions subject to appropriate rules and regulations (Section
389, RA 7160).

Firearms in the Barangay

The phrase appropriate rules and regulations refers to the

existing rules and regulations issued by the Philippine National Police
(32 s. 2010).

Bureau of Treasury XI Opinion January 28, 2011

Application for Fidelity Bond of Barangay Treasurer requires
the signature of the Punong Barangay, the latter being the
head of the agency. (citing Bureau of Treasury Circular No.
2-2009)
Application for Fidelity Bond of Punong Barangay requires the
signature of the Mayor.
PAHINUMDUM
Dili nato malikayan na ang naandan ang basehan sa
pagpadagan sa atong barangay.
PAHINUMDUM

 Dili pud nato ikalimod na walay problema kung ang naandan

pareho sa balaod. Apan dili tanan nga naandan nagasubay sa
pamalaod.
PAHINUMDUM
Kung aduna kitay natun-an karon ug ang atong mga naandan
sukwahi sa balaod, atong usbon ang naandan ug dili ang
balaod.
PAHINUMDUM
Kung sa makadugay na panahon walay nagreklamo kay
naandan man kunohay, dili na nato hulaton ang panahon nga
mareklamo ta o makasuhan ta.
PAHINUMDUM
Kay Kung kita makasuhan, dili ta makaingon nga wala ta
kabalo na naa diay ing-ana nga balaod kay
IGNORANCE OF THE LAW
EXCUSES NO ONE.
Reviewer on Local Governance
Includes the latest Supreme Court Decisions and Legal
Opinions of DILG on issues affecting local governance.
Question and Answer Format Reader Friendly.
Reviewer on Local Governance
Used as legal reference material for DILG Officers in various
regions nationwide.
Procured by local officials belonging to different leagues (PCL,
LNB, PLEASES). Used also by DAP
Reviewer on Local Governance
Authored by Atty. Erwin M. Enad, MM.
Book Foreward by DILG Usec. Austere A. Panadero

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