No grave abuse

Can a fifth class municipality adopt the salary scheme of special cities and first class provinces for its municipal officials? This is the issue raised in this case filed by Poldo and Celso, two residents of the Municipality of Midsalip, Zamboanga del Sur against its 32 Municipal Officials.

Midsalip is a fifth class Municipality which has repeated surplus accounts in the amount of P7,709,311.64 and P5,070,913.23 for the years 2002 and 2003 respectively as shown by the certified statement of savings of unobligated balances issued by the Municipal Treasurer and Accountant. This statement also showed that there was no realignment or disbursement of the 20% municipal development project for personal services expenditures from 1998 to 2002.

Because of its financial capability, the local budget ordinance of Midsalip adopted the salary schedule of special cities which was duly approved by the Sangguniang Panlalawigan of Zamboanga del Sur and later by the Department of Budget and Management. The Commission on Audit in turn also did not disallow the disbursements and expenditures of the Municipality including the salaries and allowances of the municipal officials. In fact five years into the implementation of the higher salary schedule, Midsalip had savings of P14,913,554.68 in its bank.

On September 12, 2003 however, Poldo and Celso filed before the Ombudsman in Mindanao a criminal complaint against the municipal officials of Midsalip for violation of Section 3(e) of R.A.3019, Section 81 of the Local Government Code (RA7160), Section 10 of the Salary Standardization Law (RA 6758) and the Appropriation Act.

In their letter complaint Poldo and Celso averred that the municipal officials conspired in unlawfully adopting and actually collecting the salaries, representation and travel allowance (RATA) and personnel economic relief assistance (PERA) for special cities notwithstanding the fact that the Municipality of Midsalip had no financial capacity to cover such expenditures thus affecting the delivery of basic services within its jurisdiction.

On January 27, 2004 however, the Mindanao Ombudsman dismissed the complaint against the Municipal officials. Poldo and Celso questioned this dismissal of their complaint imputing grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Ombudsman. To buttress their stance they cite the admission made by the Municipal officials that they had been receiving salaries for special cities even though the Municipality of Midsalip was a fifth class municipality. Were Poldo and Celso correct?

No. The abuse of discretion to be grave as to amount to lack or excess of jurisdiction must be so patent and gross as to be equivalent to an evasion of a positive duty or virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary manner by reason of passion or hostility. There is nothing of that sort here.

A fifth class municipality like Midsalip is not absolutely prohibited from adopting a salary schedule equivalent to that of a special city or first class province. Local Budget Circular 64 dated January 1, 1997 in conjunction with Section 11 of Local Budget Circular 56 allows Local Government Units (LGUs) lower than special cities or first class province to adopt their salary scheme if the LGU is financially capable; the salary schedule is to be applied uniformly to all positions; it is not higher than that being adopted by the national government; the salary grade allocation and salary steps of personnel are retained; the adoption of higher salary schedule is within the limitation of the Local Government Code; the salary schedule is not higher than that of the province where the municipality belong and the adoption o the higher schedule shall not in any manner alter the existing classification of the LGU concerned.

It is beyond cavil that Midsalip Municipality has complied with said conditions. It has financial capability as shown by its savings five years into the implementation of the higher salary schedule and the certified statement of savings of unobligated balances issued by the Municipal Treasurer and Accountant. Th local budget ordinance was approved by the Sanggunian, the DBM and the COA.

In sum no grave abuse of discretion was committed by the Ombudsman in dismissing the letter complaint of Poldo and Celso. Its findings are duly supported by evidence. Its findings should be accorded not only with respect but even with finality when supported by substantial evidence even if not overwhelming or preponderant as it is equipped with more expertise (Alecha and Tapitan vs. Pasion et. al. , G.R. 164546, January 19, 2010).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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