Ombudsman Conchita Carpio Morales has issued another dismissal order on Gov. Roel Degamo, Provincial Treasurer Danilo Mendez, and Provincial Accountant Teodorico Reyes, and this time included a fourth official — Provincial Engr. Franco Alpuerto — for grave misconduct with the aggravating circumstances of serious dishonesty and grave abuse of authority.
Along with the dismissal order were the accessory penalties of cancellation of eligibility, forfeiture of retirement benefits, and perpetual disqualification from re-employment in the government service.
Official copies of the 19-page Decision were received by mail last Thursday by some of the parties.
The case involves similar facts in the case earlier filed by private citizen June Manuel Vincent Gaudan over the disbursement of calamity funds amounting to P143,268,441.59 despite the withdrawal of the Special Allotment Release Order (SARO)by the Department of Budget & Management, with a demand for the return of the money to the national government.
This second administrative case stemmed from a complaint filed on Oct. 20, 2014 by the Field Investigation Office of the Office of the Ombudsman-Visayas and Board Member Jessica Jane Villanueva, who claimed that the respondents acted with manifest partiality or evident bad faith in the awarding of contracts amounting to P955,000,000, and making advance payments to the contractors amounting to P143,268,441.59.
In this second complaint, the members of the Bids and Awards Committee were also charged for their role in the conduct of the bidding, and recommending the awarding of the contracts.
However, Ombudsman Morales, in the decision signed on Dec. 22, 2016, dismissed the charges against the members of the BAC — Dr. Dante Domingo, Marichu Alpuerto, Geoffrey Villahermosa, and Josefina Columna — for lack of substantial evidence.
The complaint said the contracts were awarded to private contractors despite the DBM’s withdrawal of the SARO for the P480,755,000 that was initially downloaded to the Province of Negros Oriental for the repair of infrastructure damaged by the 6.9 magnitude earthquake in 2012 and typhoon Sendong in 2011.
The complaint added that the acts of the respondents caused undue injury to the government in the amount of P143,268,441.59 and/or extended unwarranted benefits, advantage, or preference to the private contractors.
The Commission on Audit had also issued an Audit Observation Memorandum, and thereafter a Notice of Disallowance in November 2012.
The Province appealed the Notices of Disallowance, still pending before the COA central office.
The Ombudsman denied the request of Reyes and Mendez to allow the COA to rule on their appeal before the case could proceed.
The respondents questioned the authority of Budget Undersecretary Mario Relampagos in issuing the Negative SARO and instead, ignored the directive to return the money.
The Ombudsman said if the respondents doubted the authority of the Budget Undersecretary, they should have asked a higher executive authority or secured a court order giving them control over the funds.
The Ombudsman noted that in the disbursement vouchers dated Aug. 23, 2012, Mendez and Reyes certified that funds were available, allotments had been obligated, and that the supporting documents were complete.
Engr. Franco Alpuerto also recommended the 15 percent advance payments to the 11 contractors who received the payments.
The Ombudsman also gave no weight to the position paper of Degamo, who said there was no undue injury caused to the government, as the money released to the Province was used strictly in accordance with the plans and specifications prepared by the Office of the Provincial Engineer.
“The amount of P480,755,000 is only 50 percent of the total cost of the projects funded by the Office of the President yet, as of May 2013, the level of accomplishment is already 64 percent, 14 percent more than the money released could accomplish,” Degamo said.
The Governor also said that contrary to the claim that the contractors obtained unwarranted benefits, advantage, or preference, these private contractors are the ones suffering because they still have collectibles from the provincial government that can no longer be paid due to bureaucratic maneuvers.
“The respective actions displayed by respondents Degamo, Mendez, Reyes, and F. Alpuerto clearly constitute Grave Misconduct by reason of their deliberate and malicious intention to disregard, if not violate, the directive of the DBM to return the fund to the National Treasury. They also committed Serious Dishonesty when respondents Mendez and Reyes falsified the disbursement vouchers by making untruthful statements therein, to which respondent F. Alpuerto concurred by directly participating in the preparation, which ensured the approval by respondent Degamo,” the Ombudsman said.
“They also gravely abused their authority when they, under the color of their respective offices, caused the irregular and unauthorized disbursement of the funds despite the withdrawal of the positive SARO by the DBM, and its demand to return the funds to the National Treasury, thereby causing injury to the government,” the Decision stated.
Under Civil Service rules, Grave Misconduct and Serious Dishonesty are grave offenses punishable by dismissal from the service, while Grave Abuse of Authority is a grave offense punishable by suspension for a period of six months and one day to one year for the first offense, and dismissal from service for the second offense.
The Ombudsman directed the Secretary of Interior & Local Government and the Secretary of the Department of Finance, the Governor, and the Vice Governor of Negros Oriental to implement this Decision within five days from receipt.
The four provincial officials are expected to appeal the Ombudsman’s decision on the administrative case before the Court of Appeals.
Last year, the Ombudsman’s first dismissal order was implemented by the DILG on June 17.
DILG 18 Regional Director Margie Biligan (who died in October last year) had installed Vice Gov. Edward Mark Macias as governor by succession.
However, Degamo was reinstated back as governor after he was able to secure a 60-day temporary restraining order from the Court of Appeals Special Fifth Division on June 23.
Towards the end of the 60-day TRO, the CA’s Special Fifth Division overturned the Ombudsman’s ruling, saying Degamo was only guilty of simple misconduct, and could not even be meted any punishment because of the Aguinaldo Doctrine, which condones administrative offenses of public officials who are re-elected.
Apart from saying that the Ombudsman failed to exhaustively discuss the elements, and adequately explain its finding of grave misconduct, the appellate court stressed that what Degamo did showed good faith on his part, and that it cannot find reason that he deliberately violated the law.
“We cannot, therefore, impute deliberate and willful intent to violate the law, or flagrant disregard of an established rule on the part of the Petitioner. To reiterate, Petitioner Degamo had every reason to believe that his actions were morally and legally valid, and that he acted for the suffering and devastated constituents,” the CA decision penned by Associate Justice Stephen Cruz stated.
The CA also held that there is no evidence to show that Degamo gave unwarranted benefits and advantage to the private contractors.
That first administrative case is now pending before the Supreme Court. Degamo, Mendez, and Reyes are currently facing criminal charges before the Sandiganbayan, and are out on bail of P1.1 million each. They face 11 charges for malversation for each of the contracts they entered into with the private contractors, and one charge for graft.
