Seares: Gwen case: SC guideline unclear?

Atty. Pachico A. Seares

REP. Gwen Garcia will keep her seat in the House until her term ends in 2019. That’s assured by Speaker Pantaleon Alvarez who believes the ombudsman has no right or business to discipline any member of Congress. The speaker and the Senate president usually sit on an ombudsman order to remove or discipline a legislator until his term expires.

Must be from sense of pride and independence: Congress disciplines its own and doesn’t want to be ordered, even by the ombudsman.

No threat on seat

With that mindset of congressional leaders, Gwen is not threatened with being evicted. Yet she must go to court to assail by certiorari the ombudsman order that perpetually disqualifies her from public office.

The ombudsman ruling won’t go away until it is restrained or struck down by appellate court. Cebu City north Rep. Bebot Abellanosa, slapped with a similar dismissal order in 2014, repelled the charge of conflict of interest and profiting from a P135 million plus scholarship deal.

Core of dispute

The ombudsman’s order against Gwen instructs local government executives because it may further enlighten them on when they can enter into a contract without prior authority of the legislature.

Ten years ago, Cebu politicians were parties in the Supreme Court case of Quisumbing vs. Garcia (GR#175529, Dec. 8, 2008). The same issue is tackled in the Jan. 15, 2018 ruling that orders Gwen’s dismissal.

Two ‘offenses’

The ombudsman ruling that ordered Gwen’s ouster said:

[1] Gwen in April 2012 entered into a contract with Supreme ABF Construction to buy back-filling materials for the areas of Capitol-bought Balili property in Naga that were underwater or part of the mangrove “without the authority” of the Provincial Board;

[2] She contracted the P24.46 million purchase with no o certification that funds were available.

No PB approval

Set aside for now the failure to secure fund-availability papers (for which the provincial accountant may also be blamed: he certified that all the requirements were met when they weren’t).

The principal core of dispute is the absence of PB authority, which was also a major issue in the 2008 Quisumbing case.

The main rule

Stripped of legal jargon, the SC rule is plain and uncomplicated: Local Government Code generally requires the legislature’s authority before the local government executive can enter into a contract. Except in cases provided by the code itself. And except where the authority is already given in the appropriation ordinance.

The contract for back-fill materials was based on, and the money paid was sourced to, a P50 million PB appropriation “for a seaport/airport and other economic enterprise” at the Balili property. Gwen contended the ordinance gave her the authority to contract with ABF Construction.

Enough details

The SC said in the 2008 Quisumbing case that if the appropriation ordinance already gives enough details, the executive doesn’t need further authorization.

When, however, the ordinance “describes the project in generic terms” and the work contracted has to be specified, the legislature’s approval is required.

On the contract for back-fill materials, the ordinance said the P50 million was for “airport/seaport and other economic enterprise” at the Balili property.” Not specific enough?

The ombudsman saw the need for PB approval, aside from its earlier ordinance. The appellate court that will review Gwen’s case may see it differently.

It’s about money but its more about work procedure and exercise of power than alleged misspending of money.