Office of the Ombudsman and the Fact-Finding Investigation Bureau (FFIB), Office of the Deputy Ombudsman for the Military and Other Law Emforcement Offices (MOLEO)

FIRST DIVISION

March 15, 2017

G.R. No. 213500

OFFICE OF THE OMBUDSMAN and THE FACT-FINDING INVESTIGATION BUREAU (FFIB), OFFICE OF THE DEPUTY OMBUDSMAN FOR THE MILITARY AND OTHER LAW ENFORCEMENT OFFICES (MOLEO), Petitioners vs PS/SUPT. RAINIER A. ESPINA, Respondent

DECISION

PER CURIAM:

Before the Court is a petition for review on certiorari1 assailing the Decision2 dated February 27, 2014 and the Resolution3 dated July 15, 2014 of the Court of Appeals in CA-G.R. SP No. 131114, which modified the Joint Resolution4 dated December 19, 2012 and the Joint Order5 dated July 8, 2013 of petitioner the Office of the Ombudsman (Ombudsman) in the administrative aspect of the case, docketed as OMB-P-A-12-0532-G,6 and, thereby, found respondent PS/Supt. Rainier A. Espina (Espina) administratively liable for Simple Misconduct.

The Facts

On July 11 and 17, 2012, petitioner the Fact-Finding Investigation Bureau (FFIB) of the Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices (MOLEO) filed before the Ombudsman an affidavit-complaint7 and a supplemental complaint,8 respectively, charging Espina and several other PNP officers and private individuals for: (a) violation of Republic Act No. (RA) 7080,9 RA 3019,10 RA 918411 and its Implementing Rules and Regulations (IRR), and Malversation of Public Funds through Falsification of Public Documents under Article 217 in relation to Article 171 of the Revised Penal Code (RPC); and (b) Grave Misconduct and Serious Dishonesty; arising from alleged anomalies that attended the Philippine National Police's (PNP) procurement of 40 tires, and repair, refurbishment, repowering, and maintenance services of a total of 28 units of V-150 Light Armored Vehicles (LAVs), and the related transportation and delivery expenses of 18 units of LAV s between August and December 2007.12 It averred that the PNP did not comply with the bidding procedure prescribed under RA 9184 and its IRR, in that: (a) copies of the bid documents were not furnished to possible bidders; (b) no pre-procurement and pre-bid conferences were held; (c) the invitation to bid was not published in a newspaper of general circulation; (d) the procuring agency did not require the submission of eligibility requirements as well as the technical and financial documents from the bidders; and (e) no post qualification was conducted. Further, it claimed that there were "ghost deliveries," i.e., the tires were never delivered to the PNP and no repair and refurbishment works were actually performed on the LAVs.13 The alleged anomalous transactions are as follows:

Espina, as the Acting Chief of the Management Division of the PNP Directorate for Comptrollership at the time the procurements were made,16 was impleaded in the aforesaid complaints for noting/signing the Inspection Report Forms (IRFs),17 which confirmed the PNP's receipt of the tires and other supplies, and the performance of repair and refurbishment works on the LAVs. According to the FFIB-MOLEO, by affixing his signature on the IRFs, Espina supposedly facilitated the fraudulent disbursement of funds amounting to ₱409,740,000.00 when no goods were actually delivered and no services were actually rendered.18

In defense, Espina denied any participation in the bidding and/or procurement process and maintained that he belonged to the Management Division which is responsible for the inspection of deliveries made to the PNP after the bidding and procurement process.19 He also pointed out that pursuant to the Standing Operating Procedure (SOP) No. XXA20 dated November 17, 1993, his only duty, as the said division's Acting Chief, was to note the reports. According to him, it was not his responsibility to personally inspect and confirm deliveries and go beyond the contents of the IRFs submitted by his subordinates, absent any irregularity reported by the property inspectors who are tasked to check and examine deliveries.21

The Ombudsman Ruling

In a Joint Resolution22 dated December 19, 2012, the Ombudsman found probable cause to indict Espina and several other PNP officers for violation of Section 3 (e) of RA 3019, Section 65 (b) (4) of RA 9184, and for Malversation of Public Funds through Falsification under Article 217 in relation to Article 171 of the RPC. The Ombudsman also found them guilty of Grave Misconduct and Serious Dishonesty and, accordingly, recommended their dismissal from government service.23

Specifically, the Ombudsman held that Espina executed indispensable acts which led to the completion of the illegal transactions.24 The Ombudsman likewise found it incredulous that the repair and refurbishment works on the LAV s were completed in only seven (7) days, i.e., from December 20, 2007 to December 27, 2007, considering the magnitude of the work involved, which included the delivery of the LAVs for repair, the inspection and acceptance of materials to be used, the actual conduct of repair and refurbishment works, and the delivery, inspection, and acceptance of the repaired and refurbished LAVs.25 The Ombudsman even noted the admission of one of the experts engaged in the repair of the LAVs that the repair and refurbishment works thereon were still on-going as late as February 2008 until 2010 and, hence, could not have been completed in December 2007.26

On reconsideration, the Ombudsman, through a Joint Order27 dated July 8 2013, dropped the charges against Espina and several other PNP Officers, for violation of Section 65 (b) (4) of RA 9184, but sustained the other findings, including their dismissal from service in view of their administrative liability. In denying Espina's motion for reconsideration in the administrative case, the Ombudsman pointed out that while it was not Espina's duty to make his own inspections of the alleged deliveries and work as the same devolved upon the property inspectors, "it was incumbent upon [Espina] to affix his signature only after checking the completeness and propriety of the documents."28 Such disregard of duty paved the way for the consummation of four (4) highly illegal and irregular transactions, i.e., the disbursement of government funds despite apparent non-delivery of the items and non-performance of works procured.29

Aggrieved, Espina filed a petition for review30 before the CA, imp leading both the Ombudsman and the FFIB-MOLEO (collectively, petitioners), docketed as CA-G.R. SP No. 131114.

The CA Ruling

In a Decision31 dated February 27, 2014, the CA ruled in favor of Espina and held that his act of affixing his signature on the IRFs could not be considered as Grave Misconduct because he did not: (a) unlawfully use his official position for the purpose of benefiting himself;32 and (b) exhibit corrupt or depraved motives, clear intent to violate the law, or flagrant disregard of established rules. It observed that Espina had no participation in the bidding and procurement process as he belonged to the PNP's Management Division whose function is to inspect and note the deliveries to the PNP after the required bidding and procurement process had taken place. As such, no liability could attach to him absent a nexus between his functions as Acting Chief of the Management Division and the alleged anomalous procurement process.33

The CA found Espina guilty, instead, of Simple Misconduct, a less grave offense punishable with suspension for one (1) month and one (1) day to six (6) months for the first offense, and dismissal for the second offense. It rejected Espina's defense of reliance in good faith on the acts of his subordinates, holding that he had the obligation to supervise them and ensure that the IRFs and Work Orders they prepared, as well as every procurement-related document released by his division, were regular, lawful, valid, and accurate, considering the significance of the transaction related to the disbursement of public funds over which great responsibility attached.34

However, the CA absolved Espina from the charge of Serious Dishonesty, considering that he did not personally prepare the IRFs but merely affixed his signatures thereon. At best, he imprudently failed to check and counter-check the contents of the IRFs and the Work Orders he signed, which, however, does not equate to Serious Dishonesty.35

There being no aggravating or mitigating circumstance, the CA imposed on Espina a three-month suspension reckoned from the time he was actually dismissed from service.36

Dissatisfied, petitioners moved for reconsideration37 which was, however, denied by the CA in a Resolution38 dated July 15, 2014; hence, the present petition.

The Issue Before the Court

The core issue for the Court's resolution is whether or not Espina should be held administratively liable for the charges imputed against him.

The Court's Ruling

The petition is partly meritorious.

At the outset, the Court emphasizes that as a general rule, factual findings of the Ombudsman are conclusive when supported by substantial evidence and are accorded due respect and weight, especially when affirmed by the CA.39 In this case, except as to the legal conclusion on what administrative offense was committed by Espina, the Ombudsman and the CA both found that Espina signed the IRFs even if there were actually no tires delivered to the PNP and no repair and refurbishment works performed on the LA Vs. Accordingly, these findings of fact are conclusive and binding and shall no longer be delved into, and this Court shall confine itself to the determination of the proper administrative offense chargeable against Espina and the appropriate penalty therefor.

In the case at bar, Espina was charged with grave misconduct and serious dishonesty before the Ombudsman which found him guilty as charged, and imposed on him the supreme penalty of dismissal from government service with all its accessory penalties, while the CA adjudged him guilty only of simple misconduct and punished him with a three-month suspension.

Misconduct generally means wrongful, improper or unlawful conduct motivated by a premeditated, obstinate or intentional purpose.40 It is intentional wrongdoing or deliberate violation of a rule of law or standard of behavior and to constitute an administrative offense, the misconduct should relate to or be connected with the performance of the official functions and duties of a public officer.41 It is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer.42

There are two (2) types of misconduct, namely: grave misconduct and simple misconduct. In grave misconduct, as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of an established rule must be manifest.43 Without any of these elements, the transgression of an established rule is properly characterized as simple misconduct only.44

On the other hand, dishonesty, which is defined as the "disposition to lie, cheat, deceive, or defraud; untrustworthiness, lack of integrity,"45 is classified in three (3) gradations, namely: serious, less serious, and simple.46 Serious dishonesty comprises dishonest acts: (a) causing serious damage and grave prejudice to the government; (b) directly involving property, accountable forms or money for which respondent is directly accountable and the respondent shows an intent to commit material gain, graft and corruption; (c) exhibiting moral depravity on the part of the respondent; (d) involving a Civil Service examination, irregularity or fake Civil Service eligibility such as, but not limited to, impersonation, cheating and use of crib sheets; (e) committed several times or in various occasions; (j) committed with grave abuse of authority; (g) committed with fraud and/or falsification of official documents relating to respondent's employment; and (h) other analogous circumstances.47 A dishonest act without the attendance of any of these circumstances can only be characterized as simple dishonesty.48 In between the aforesaid two forms of dishonesty is less serious dishonesty which obtains when: (a) the dishonest act caused damage and prejudice to the government which is not so serious as to qualify as serious dishonesty; (b) the respondent did not take advantage of his/her position in committing the dishonest act; and (c) other analogous circumstances.49

Both grave misconduct and serious dishonesty, of which Espina was charged, are classified as grave offenses for which the penalty of dismissal is meted even for first time offenders.50

Here, the CA correctly observed that while Espina may have failed to personally confirm the delivery of the procured items, the same does not constitute dishonesty of any form inasmuch as he did not personally prepare the IRFs but merely affixed his signature thereon after his subordinates supplied the details therein.

Neither can Espina's acts be considered misconduct, grave or simple. The records are bereft of any proof that Espina was motivated by a premeditated, obstinate or deliberate intent of violating the law, or disregarding any established rule, or that he wrongfully used his position to procure some benefit for himself or for another person, contrary to duty and the rights of others.

However, after a circumspect review of the records, the Court finds Espina administratively liable, instead, for Gross Neglect of Duty, warranting his dismissal from government service.51 At the outset, it should be pointed out that the designation of the offense or offenses with which a person is charged in an administrative case is not controlling, and one may be found guilty of another offense where the substance of the allegations and evidence presented sufficiently proves one's guilt,52 as in this case. Notably, the FFIB-MOLEO's supplemental complaint accused Espina with failure to exercise due diligence in signing the IRFs, which is sufficient to hold him liable for Gross Neglect of Duty.53

Gross neglect of duty is defined as "[n]egligence characterized by want of even slight care, or by acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to the consequences, insofar as other persons may be affected. It is the omission of that care that even inattentive and thoughtless men never fail to give to their own property."54 In contrast, simple neglect of duty is the failure of an employee or official to give proper attention to a task expected of him or her, signifying a "disregard of a duty resulting from carelessness or indifference."55

As aptly observed by the CA, Espina had the obligation to supervise his subordinates and see to it that they have performed their respective functions in accordance with law.56 To recall, Espina was the Acting Chief and Head of the PNP's Management Division and, as such, had supervisory powers over the departments or sections which comprise it, namely: (a) the Internal Control and Inspection Section (ICIS); (b) the Accountability and Assistance Section; (c) the Management Improvement Section; and (d) the Claims and Examination Section (CES).57 Espina himself admitted that the property inspectors who were tasked to personally inspect deliveries to the PNP belong to the ICIS which was under his management and stewardship.58 In Lihaylihay v. People,59 the Court pointed out that the nature of the public officers' responsibilities and their role in the procurement process are compelling factors that should have led them to examine with greater detail the documents which they are made to approve.

Here, while SOP No. XX4 dated November 17, 1993 which Espina cited does not expressly require the Head of the Management Division to physically re-inspect, re-check, and verify the deliveries to the PNP as reported by the property inspectors under him, his duty was not simply to "note" or take cognizance of the existence of the IRFs, but to reasonably ensure that they were prepared in accordance with law, keeping in mind the basic requirement that the goods allegedly delivered to and services allegedly performed for the government have actually been delivered and performed. As aptly pointed out by the Ombudsman in its Joint Order dated July 8, 2013, "it was incumbent upon [Espina] to affix his signature only after checking the completeness and propriety of the documents."60 However, while Espina claims that all the necessary supporting documents such as photographs and delivery receipts were attached to the IRFs at the time they were routed to him for his signature,61 the Court is hard-pressed to find proof substantiating such claim to justify his passive attitude towards them. In this jurisdiction, it is axiomatic that he who alleges a fact has the burden of proving it.62 Without evidence showing otherwise, the Court is constrained to conclude that the IRFs submitted to Espina for his signature were without supporting documents and could not, perforce, be taken at face value and relied upon. As this Court ruled in Jaca v. People,63 a superior cannot rely in good faith on the act of a subordinate where the documents that would support the subordinate' s action were not even in his (the superior's) possession for examination.

Moreover, the timing of the alleged repair and refurbishment works was suspect. The short seven (7)-day period in December, 2007 during which the repair and refurbishment works were made on the LAV s should have prompted Espina to doubt the veracity of the IRFs. As correctly observed by the Ombudsman, it is improbable that the repair and refurbishment works on the LAVs were carried out from December 20 to 27, 2007, given the magnitude of the work involved and the fact that such period included the delivery of the LAV s for repair, the inspection and approval of the materials to be used for the repairs, the actual repair and refurbishment, and the delivery of the LA Vs to the PNP after the repair.64

The foregoing should not have escaped Espina's attention had he faithfully discharged the obligations attendant to his office.1'wphi1 Indeed, the Court has pronounced that a public officer's high position imposes upon him greater responsibility and obliges him to be more circumspect in his actions and in the discharge of his official duties.65 This particularly applies to the instant controversy, especially where Espina's signature was one of the final steps needed for the release of payment for the procured items.66 In fact, the disbursement vouchers prepared by the Logistics Support Service (LSS)

Finance Service were routed back to the CES of the Management Division under Espina's supervision for final examination of all claims.67 With all these considerations, Espina was expected to employ diligence in ensuring that all claims were supported by complete pertinent documents. As succinctly put by the CA, Espina's duty as Acting Chief was not merely ministerial and perfunctory as it related to the disbursement of funds over which a great responsibility attached.68

More so, considering the sheer magnitude of the amount in taxpayers' money involved, i.e., ₱409,740,000.00, Espina should have exercised utmost care before signing the IRFs. It is of no moment that the disbursement of the ₱409,740,000.00 was spread over several transactions and not through a single payment or that only the IRFs relating to the delivery of supplies were allegedly presented;69 the fact remains that taxpayers' money was spent without the corresponding goods and services having been delivered to the government. Indeed, no rule is more settled than that a public office is a public trust and public officers and employees must, at all times, be accountable to the people.70

Espina cannot trivialize his role in the disbursement of funds and bank on the lack of confidential written reports from his subordinates which would have prompted him to make further inquiry. As aptly pointed out by petitioners, Espina was the last person to affix his signature and, as such, had the power, if not the duty, to unearth and expose anomalous or irregular transactions.71 Espina cannot blindly adhere to the findings and opinions of his subordinates, lest he be reduced to a mere clerk who has no authority over his subordinates and the sections he oversees.

The Court is not unaware of the ruling in Arias v. Sandiganbayan72 (Arias) that heads of offices may rely on their subordinates. For the Arias doctrine to apply, however, there must be no reason for the head of offices to go beyond the recommendations of their subordinates,73 which is not the case here.

Given the amounts involved and the timing of the alleged deliveries, the circumstances reasonably impose on Espina a higher degree of care and vigilance in the discharge of his duties. Thus, he should have been prompted to make further inquiry as to the truth of his subordinates' reports. Had he made the proper inquiries, he would have discovered the non-delivery of the procured items and the non-performance of the procured services, and prevented the unlawful disbursement. However, he did not do this at all. Instead, he blindly relied on the report and recommendation of his subordinates and affixed his signature on the IRFs. Plainly, Espina acted negligently, unmindful of the high position he occupied and the responsibilities it carried, and without regard to his accountability for the hundreds of millions in taxpayers' money involved.

Verily, this Court has repeatedly emphasized the time-honored rule that a "[p ]ublic office is a public trust [and] [p]ublic officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice and lead modest lives."74 This high constitutional standard of conduct is not intended to be mere rhetoric and taken lightly as those in the public service are enjoined to fully comply with this standard or run the risk of facing administrative sanctions ranging from reprimand to the extreme penalty of dismissal from the service.75 Erring public officials may also be held personally liable for disbursements made in violation of law or regulation, as stated in Section 52,76 Chapter 9, Subtitle B, Title I, Book V of the Administrative Code of 1987.77 Thus, public officers, as recipients of public trust, are under obligation to perform the duties of their offices honestly, faithfully, and to the best of their ability.78 Unfortunately, Espina failed miserably in this respect.

WHEREFORE, the petition is PARTLY GRANTED. The Decision dated February 27, 2014 and the Resolution dated July 15, 2014 of the Court of Appeals in CA-G.R. SP No. 131114 are hereby SET ASIDE. A new one is ENTERED finding respondent Rainier A. Espina GUILTY of GROSS NEGLECT OF DUTY. Accordingly, he is DISMISSED from government service with all the accessory penalties.

SO ORDERED.

MARIA LOURDES P.A. SERENOChief Justice

C E R T I F I C A T I O N

Pursuant to the Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

Footnotes

1 Rollo, pp. 13-37.

2 Id. at 47-66. Penned by Associate Justice Jane Aurora C. Lantion with Associate Justices Vicente S.E. Veloso and Nina G. Antonio-Valenzuela concurring.

3 Id. at 69-72.

4 Records, Vol. 65, pp. 07529-07636. Signed by the Investigating Panel created Pursuant to Office No. 248, Series of2012 and approved by Ombudsman Conchita Carpio Morales.

5 Id. at 07637-07704.

6 The criminal aspect of the case was docketed as OMB-P-C-12-0503-G.

7 Dated July 10, 2012. Records, Vol. 56, pp. 02658-02667.

8 Dated July 17, 2012. Rollo, pp. 131-156.

9 Otherwise known as the "GOVERNMENT PROCUREMENT REFORM ACT and entitled "AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER" (approved on July 12, 1991).

10 Entitled "ANTI-GRAFT AND CORRUPT PRACTICES ACT," as amended (approved on August 17, 1960).

11 Entitled "AN ACT PROVIDING FOR THE MODERNIZATION, STANDARDIZATION AND REGULATION OF THE PROCUREMENT ACTIVITIES OF THE GOVERNMENT AND FOR OTHER PURPOSES," OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT" (approved on January 10, 2003).

12 See Records, Vol. 65, pp. 07532-07542.

13 See id. at 07577-07580.

14 The fund therefor was realigned on December 17, 2007 to "Other Supplies Expenses." See id. at

07542-07543.

15 Id. at 07533-07534.

16 Rollo, p. 53.

17 Id. at 229. See also the IRFs dated December 14, 18, and 27, 2007; records, Vol. 21, pp. 36-41.

18 See records, Vol. 65, pp. 07612-07613 and 07627-07628.

19 Id. at 07563-07564.

20 Rollo, pp. 125 and 127-129.

21 Id. at 228-230. See also records, Vol. 65, pp. 07563-07564.

22 Records, Vol. 65, pp. 07529-07636.

23 Id. at 07633-07634.

24 Id. at 07628.

25 Id. at 07611-07612.

26 Id. at 07612.

27 Id. at 07637-07704.

28 See Joint Order dated July 8, 2013; id. at 07679.

29 Id. at 07681-07682.

30 Not attached to the rollo.

31 Rollo, pp. 47-66.

32 Id. at 60.

33 Id. at 61.

34 Id. at 63-64.

35 Id. at 64.

36 Id. at 64-65.

37 Not attached to the rollo.

38 Rollo, pp. 69-72.

39 Cabalit v. Commission on Audit-Region VII, 679 Phil. 138, 157-158 (2012).

40 Ombudsman v. Magno, 592 Phil. 636, 658 (2008).

41 Ganzon v. Arias, 720 Phil. 104, 113 (2013).

42 Amit v. Commission on Audit (COA), 699 Phil. 9, 26 (2012).

43 Ganzon v. Arias, supra note 41.

44 Imperial v. GSIS, 674 Phil. 286, 296 (2011 ).

45 Light Rail Transit Authority v. Salvana, 736 Phil. 123, 151 (2014), citation omitted.

46 Id. at 173, citing Civil Service Commission (CSC) Resolution No. 060538 dated April 4, 2006, otherwise known as the "Rules on the Administrative Offense of Dishonesty."

47 See CSC Resolution No. 060538, Section 3.

48 See CSC Resolution No. 060538, Section 5.

49 See CSC Resolution No. 060538, Section 4.

50 See Section 46 (A) (l) and (3), Rule 10 of the Revised Rules on Administrative Cases in the Civil Service (RRACCS).

51 See Section 46 (A) (2), Rule 10 of the RRACCS.

52 Pia v. Gervacio, Jr., 710 Phil. 196, 207 (2013), citing Avenido v. CSC, 576 Phil. 654, 661 (2008).

53 See rollo, p. 148.

54 See Ombudsman v. Delos Reyes, Jr., 745 Phil. 366, 381 (2014).

55 Ombudsman v. De Leon, 705 Phil. 26, 38 (2013), citing Republic v. Canastillo, 551 Phil. 987, 996 (2007).

56 Rollo, p. 63.

57 Id. at 123.

58 Id. at 84-85.

59 715 Phil. 722, 732 (2013).

60 See records, Vol. 65, p. 07679; underscoring supplied.

61 Rollo, pp. 532-533.

62 Luxuria Homes, Inc. v. CA, 361 Phil. 989, 1000 (1999).

63 702 Phil. 210, 250 (2013 ).

64 See Joint Resolution dated December 19, 2012; records, Vol. 65, pp. 07611-07612.

65 Amit v. COA, supra note 42, at 24.

66 Rollo, pp. 84-85.

67 See Joint Order dated July 8, 2013; records, Vol. 65, p. 07682.

68 Rollo, p. 63.

69 Id. at 95.

70 See Section 1, Article XI of the 1987 Constitution.

71 See rollo, p. 35.

72 259 Phil. 794, 801 (1989).

73 Id.; See also Jaca v. People, supra note 63, at 314.

74 Section 1, Article XI of the 1987 Constitution

75 Amit v. COA, supra note 42, at 25.

76 SECTION 52. General Liability for Unlawful Expenditures. - Expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor.

77 Executive Order No. 292, series of 1987, entitled "INSTITUTING THE 'ADMINISTRATIVE CODE OF 1987'" (approved on July 25, 1987).

78 Penalosa v. Viscaya, Jr., 173 Phil. 487, 489 (1978).