The president of the liga ng mga barangay in Dumaguete City can be held liable for criminal, civil and administrative charges for continuing to function as member of the city council, despite a vacancy in such office or position owing to his ipso facto resignation when he filed his certificate of candidacy.
Harrison Gonzales, punong barangay of Tinago Dumaguete City and president of the city's liga ng mga barangay became the ex officio member of the city council having been appointed as such pursuant to the local government code.
But the office or position of ex officio city councilor was vacated by Gonzales when he filed his certificate of candidacy for city councilor for the May 14, 2007 elections
Gonzales’ appointment as ex officio member of the city council being the president of the liga ng mga barangay, is pursuant to law, i.e. Section 494 of the local government code (R.A. 7160).
The local government code states that “the duly elected presidents of the liga…shall serve as ex-officio members of the sanguniang panlunsod. They shall serve as such only during their term of office as presidents of the liga chapters which in no case shall be beyond the term of office of the sanggunian concerned.”
Thus, while being punong barangay and being president of the liga is an elective position, the ex officio membership in the city council is an appointive position, Gonzales not being elected as a regular member of the city council.
According to Section 457 © of the local government code, the regular members of the city council are those who are elected by the people as such.
Gonzales was never elected as a member of the city council. His (ex officio) membership in the city council is appointive in nature, pursuant to law, Section 494 of the local government code.
Section 66 of the omnibus election code mandates that, “any person holding a public appointive office or position…shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.
When Harrison Gonzales filed his certificate of candidacy for city councilor in March 2007, he was considered ipso facto resigned from the office as ex officio member of the city council, and the position became vacant at that time.
There is a valid, logical and laudable reason for the ipso facto resignation: to prevent such officer from taking advantage of the position to advance his political interests.
Section 45 (d) of the local government code provides that in case of vacancy in the representation of the barangay in the sanggunian, said vacancy shall be filled automatically by the official next in rank of the organization concerned.
Yet, even after having filed his certificate of candidacy, Gonzales illegally continued to hold office and function as an ex officio member of the city council, records and minutes of the council show.
Such illegal acts can constitute usurpation, a criminal offense under the revised penal code.
Article 177 of the penal code punishes any person who shall perform any act pertaining to any person in authority or public officer of the government or any agency thereof, without being lawfully entitled to do so.
If convicted, the accused can face over four years imprisonment.
Gonzales continued to function as city councilor.
What was he doing?
The Omnibus election code considers people in appointive office ipso facto resigned upon the filing of their certificates of candidacy.
The laudable objection is to prevent the abuse of the position during the campaign period.
Even after the barangay ex officio membership in the city council became vacant by the ipso facto resignation of Harrison Gonzales when he filed his certificate of candidacy, he still continued to function as city councilor.
In the April 2007 sessions of the city council, Harrison Gonzales, the candidate, wasted no time in using his illegally occupied position, by sponsoring politically charged and motivated actions in the council.
For instance, records of the city council would show that during the April 12, 2007 session of the city council Gonzales, a candidate for councilor, initiated moves for the disbursement of taxpayers’ money for all sorts of purposes and for the proliferation of gambling activities.
The following were pushed by Gonzales during the April 12, 2007 session of the city council:
Authorizing the issuance of a special permit, subject to the mayor’s approval to hold a 5-cock 3-day derby on April 19, 20, 21, 2007 at the Dumaguete cockpit. Proceeds of the activity were to be used to support the activities of the women with disabilities of Dumaguete (together with Catan). As to how disabled women can be related to cockfighting, is unknown.
Another measure pushed by Gonzales was authorizing the city treasurer to disburse P145,000 to be used for the partial expenses of the so-called Kabulakan Festival funds to be taken from the tourism council trust fund (with Kag. Catan).
Another Gonzales-pushed measure was appropriating P1,282,000 for the concreting of unamed barangay road to Bajumpandan Habitat 4, with funds to be taken from the unappropriated surplus code 501 (with Kag Esmena and Catan).
These and other disbursement of peoples’ funds were made at the height of the election campaign where Gonzales was a candidate.
The question now is how could Harrison Gonzales illegally continue to function as city councilor, pushing for disbursement of peoples’ money, while at the same time courting the constituency for their votes?
Does this not strike at the very heart of the noble objectives of Section 66 of the omnibus election code?
How could he illegally use public office as a means ostensibly to advance his political interests, considering that these authorities to disburse came during the election campaign period?
Rejected by the people
After the May 14 2007 elections, Gonzales bid for regular membership in the city council was resoundingly rejected by the people of Dumaguete.
There arises now an monumental anomaly where a directly rejected candidate, still continues to function as ex officio city councilor by virtue of his being president of the liga ng mga barangay.
After having been severely beaten in the elections (he placed 19th out of 20 candidates) , Harrison Gonzales continues to claim membership in the council, attending its session, even as his appointment as ex officio member has been terminated by his ipso facto resignation in March.
Gonzales bases his title as city council member through ex officio membership.
But the people don’t want him in the city council in the first place.
For Harrison Gonzales to continue functioning as ex officio city councilor even if he is deemed resigned from such appointment, and worse even after having been rejected by the sovereign electorate, is the height of absurdity.
This is a case of Gonzales having his cake and eating it too.
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