ME.

MORANDUM
FOR:
FROM :
SUBJECT :
DATE:
Assistant Commissioners, Regional and Clustt>l' Dkectors
and All C(lucerned Officials and Employees
--
Office of the Chairman
COMELEC Memorandum No. 13-2173 (Law 13-2003)
Ganting COA ltequest for Exemption (if necessar'Y) on
the Tmnsfer of Its Officials and Employees under OEC
Sec. 261 (H)
03 April 1.013
Transmitted herewith is a copy of COMELEC Memorandum No. 13-2) 73 (Law 13-
2003), the dispositive portion of which reads as follows:
1. Declare that the of its employees eflected
before 13 January 2013 are NOT covered by the ban, subj ect hereof; and
2. APPROVE the present request of Chairperson Maria Gracia M. Pulido Tan
covering the proposed transJer/reassignment/designation of its employees effected
after 13 January 2013.
For your information and guidance.
/
. .
Republic of the Philippines
COMMISSION ON ELECTIONS
Intramuros, Manila
Law Department
,
.e:.~J .:L.1'9~Llh~i1J -'lj;j~7
LETTER OF THE COMMISSION ON AUDIT ON
THE TRANSFER OF ITS EMPLOYEES UNDER
OEC SEC. 261 (H)
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
NOTICE
HON. MARIA GRACIA M. PULIDO TAN
Chairperson
Commission on Audit
Commonwealth Ave. , Quezon City
G RE ET IN G S:
For your information and guidance, attached is a copy of the approval
from the Office of the Chairman, this Commission in the above-entitled matter.
Thank you very much.
March 25, 2013.
.~
ATTY. ESMERALDA AMORA-LAD~
Director IV
Encl. : ajs
AZMT:angie: imple-13-2173(LAW-13-2003} Pulido Tan
,
, ,.
Page1 of 7
FOR
Republic of thePhilippines
COMMISSION ON ELECTIONS
Intramuros, Manila
LAWDEPARTMENT '"
SUBJECT: LETTER OF THE COMMISSION ON AUDIT
ONTHE TRANSFER OF ITS EMPLOYEES
UNDER OEC SEC. 261 (H)
DATE 11 MARCH 2013
This pertains to the letter of Hon. Maria Gracia M.
Pulido Tan, Commission on Audit Chairperson, dated 16
J anuary 2013, which was received by this Office on 11
February 2013, requesting for immediate exemption (if
necessary) from the provision of Section 261 (h) of the
Omnibus Election Code, thus stated:
xxx
This is to inform you that on January 11, 2013, I issued in
my capacity as Chairman and Chief Executive Officer of the
Commission on Audit several Office Orders reassigning about 8,000
of out officials and employees."
xxx
The Office Orders expressly state that the reassignments are
effective January 11, 2013". The Order expressly state, in
keeping with pertinent rules of the Civil Service Commission, that the
reassigned personnel shall secure the necessary clearances from
their former stations within 30 days from their receipt of the Orders,
"without prejudice to their immediate assumption of office at
their newplaces of assignment."
It is my humble and considered optniori that with the
effectivity of the reassignment! transfers having been expressly
stated to be January 11, 2013, the said reassignment!transfers are
j ~ t I
Page 2 of 7
outside of the prohibited period starting from January 13, 2013.
That any concerned official and/ or employee should "assume" on or
after January 13 should be of no moment, because by express
language of Sec. 1.A.1 of Comelec Resolution No. 9581, the
prohibition is to make or cause any transfer or detail
whatsoever of any officer or employee in the civil
service"starting January 13, 2013. "
Clearly, the act of transferring or causing any transfer was
made on January 11 and made effective also as of that date. I
submit that the affected officials and employees cannot vary the
effective date thereof by the mere expedient of "assuminq" their new
posts thereafter. Otherwise, the inherent authority of the duly
constituted officer to make or cause such transfer would be greatly
undermined, and the affected personnel will effectively be given the
absolute prerogative to decide for themselves whether or not to
comply with such Orders. In this case, the reason for the ban -
which is essentially to insulate the civil service from partisan politics
- will be rendered nugatory because then, the affected personnel
can choose to remain in his post for political expediency by simply
invoking that he cannot "assume" his new post because of the ban."
xxx
It is in this light that I am bringing this matter to your
immediate attention. To reiterate, it is humbly submitted that
the transfers/reassignments took effect on the date expressly
stated in the Orders, i,e, January 11, 2013, regardless of the
date of "assumption" of the concerned personnel; hence,
before the effectivity of the ban and, therefore, we do not
need to seek exemption. January 11fell on a Friday, and since
many of the reassignments involved moving from one locality to
another, physical assumption could not be made on the same day,
or even on January 12, for that matter, as it fell on a Saturday
which is a non-working holiday.
Should the Commission on Elections deem it otherwise,
however, please consider this as an urgent request for exemption for
your immediate favorable consideration. We need your guidance
and approval at the sootiest possible time to enable us to effectively
and fully carry out these transfers. Already, we have received
information that the Sanggunian Panlalawigan of a Northern
Province will be issuing a Resolution to the effect that "aesumption"
on or after January 13, 2013is covered by the ban and will hold
COAfor election offenses should such assumptions be allowed to
proceed. It is not farfetched that other government units will follow
suit.
xxx
We have approved on 05 February 2013 the earlier
request of the Commission onAudit for authority to transfer
its higher level employees, such as Assistant Commissioners,
Directors, SupervisingAuditors, etc.
Page 3 of7
Asaconsequence of the OfficeOrders issued byCOA, we
likewise received three (3)letters fromCOAemployees' subject
of the transfer and detail orders, questioning the acts of COA
Chairman Pulido Tan for being violative of the election laws.
Two (2) letters were anonymous and one (1) is from State
Auditor III Carlito C. Matias.
Pertinent portion of their letter reads as follows:
Chairperson Tan in her letter dated January 16, 2013
addressed to your goodself opined that the
reassignment/transfer dated January 11,2013 of the officers
and employees of the Commission on Audit are outside of the
prohibited period starting January 13, 2013in relation to Sec.
1.A.1 of Comelec Resolution No. 9581. The prohibition is to
make or cause ay transfer whatsoever of any officer or
employee in the civil service starting January 13, 2013.
Partially Chairperson Tan iscorrect, that is, if we focus
only on the date of the reassignment orders and transmission
of the orders to the various COA Regional Offices. However,
the officers or employees are one of the key essential elements
of the prohibition. To make the reassignment compliant with
the election ban the date of the order and the actual
assumption of the officers and employees (members of the
rank and file association) to be reassigned is crucial. In COA
Region X, the Supervising Auditors and Audit Teams will have
their actual assumption and turn-over on the first to the last
week of February 2013 and thereafter. All officers and
employees who will assume to their new assignment have
violated the election ban. Thus, it is my humble opinion that
the act of Atty. Mero in issuing the said memorandum acted in
excess of his authority or may have committed grave abuse of
discretion and/ or usurpation of officialfunction." x x x
-Carlito C. Matias
State Auditor III
Our deep concern and the subject matter of this letter
are the Office Orders dated January 11, 2013 issued by the
COAofficials concerned relative to the manning complement of
the various agencies of the Commission on Audit in line with
its Unified/Intergrated Audit Approach. Such office orders
were actually received by us only last January 15, 2013but
upon strict verbal orders or instructions of certain highly
placed COA officials, we were made tofalsify the date of our
receipt by directing us to make it appear that we all received
the questionable office orders on January 11, 2013 and
assumed on the same date (January 11, 2013) although in
truth and infact we have not yet assumed even up to now, in
order to circumvent, or pretend not violating, COMELEC
Page40[7
Resolution No. 9385which actually prohibits the transfer and
movement of personnel starting last January 13, 2013. You
can very well verify this patent violation of law from all COA
auditors involved and the records of various COA Central and
Regional Offices concerned like COARegion IV.
-Concerned COAEmployees
"On.January 14, 2013, (Monday), the officers and employees
of the Commission on Audit, Regional Office No. 10received Office
Orders Nos. 081, 082, 083, 084, 085, 086, and 087 with the subject
- Manning complement under the revised structure of the offices
under Region 10, under COA Resolution No. 2012-019 dated
December 20,2012.
The said orders dated January 11, 2013 reconstituted the
manning complement of the offices name therein thereby re-
assigning its officers and employees from their present assignment
as of January 11, 2013 to another assignment located on their
places mentioned therein.
It is informed that verbal instruction were given that all
officers and employees with an assignment within Cagayan DeOro
City should assume office on January 14, 2013 while those
assigned outside Cagayan De Oro City should assume office on
January 17,2013.
Based on the above scenario, the transfer or movement of
personnel of the Commission on Audit, Regional Office No. 10was
made within the election period provided under COMELEC
Resolution No. 9385, therefor the same is considered as prohibited
acts and the public officials concerned committed an election
offense.
Inconsonance thereto, the movement of the personnel is
illegal and the same should not be effected within the
election period as prescribed."
-The Auditors
Therules governingthe prohibition ontransfer or detail
of employees in the civil service are clearly provided in
Comelec Resolution No. 9518, thus:
SECTION1. Prohibited acts.
A. During the election period from January 13, 2013
to June 12, 2013, no public official shall, except
upon prior written authority of the Commission:
1. Make or cause any transfer or detail whatsoever
of any officer or employee in the civil service,
including public school teachers. Transfer"as
Page 5 of 7
used in this provision shall be construed asany
personnel movement from one government
agency to another or from one department,
division, geographical unit or subdivision of a
government agency to another with or without
the issuance of an appointment.
xxx
Theelements of theelectionoffenseof "transfer of officers
and employees in the civil service" 1 as definedandpenalizedin
theOmnibus ElectionCodeareas follows:
1. The fact of transfer or detail of public officer or
employeewithintheelectionperiodas fixedbythe
COMELEC,and
2. The transfer or detail was effectedwithout prior
approval of the COMELECinaccordance with its
implementing rules andregulations.
Hence, any movement of personnel in the civil service
whether it is denominated as transfer, detail or re-assignment
is coveredbythe prohibition. During the period set forth by
the COMELEC,the same cannot beimplemented except with
theprior written authority thereof.
Inthe case of People vs. Reyes, the Honorable Supreme
Court ruled, thus:
It ought to be immediately obvious that Section 261 (h)
of B.P. BIg. 881 does not per se outlaw the transfer of a
government officer or employee during the election period. To
be sure, the transfer or detail of apublic officer or employee is
a prerogative of the appointing authority. It is necessary to
meet the exigencies of public service sometimes too difficult to
perceive and predict. Without this inherent prerogative, the
appointing authority may not be able to cope with emergencies
to the detriment of public service. Clearly then, the transfer or
detail of government officer or employee will not be penalized
by Section 261 (h) of B.P. BIg. 881 if done topromote efficiency
in the government service. Hence, Section 2of Resolution No.
2333 provides that the COMELEChas topassupon reason for
the proposed transfer or detail of any officer or employee in
the civil service, including public school teachers, shall be
submitted in writing to the Commission indicating therein the
office and place to which the officer or employee is proposed to
1 People v. Reyes, 247 SeRA 328 [1995]
Page6of 8
This was reiterated inthe caseof Regalado, Jr. vs. Court
of Appeals- when the Honorable Supreme Court ruled that
indeed, appointing authorities can transfer or detail personnel
as the exigencies of public service require. However, during
electionperiod, as such personnel movement couldbeusedfor
electioneering or even to harass subordinated who are of
different political persuasions, Section261 (h)of theOmnibus
Election Code, as amended, prohibits the same unless
approvedbytheCOMELEC.
Theclear import of thecaseisthat evenif thetransfer of
an employeeis in the exigencyof the service, there is still a
needfor aprior written authority fromthe Commissionbefore
the same can beeffected. What is being penalized is not the
transfer per se, thesamebeingwithinthescopeof authority of
the appointing power, but transfer which is effectedwithout
the needed authority fromthe Commission. Otherwise, it will
be very easy to circumvent the requirements of the lawby
simplystating that thetransfer of employee/swasmadeinthe
exigencyoftheservice.
It can beinferredfromthe abovethat, it is the issuance
and implementation of the Order that is controlling. As long
as the order directing any movement of officers and
employees in the civil service was issued and implemented
outside the election period, the same is not covered by the
prohibition. Onthe other hand, evenif the order was made
before the onset of the election period but was only
implemented during the prohibitive period, the same is
coveredbytheprohibition.
It is worthy tonote likewisethat, it is the public official
who causes the transfer or detail whatever of any officer or
employee in the civil service without any prior written
authority fromthe Commission who is being penalized by
Section 261 (h) of the OEC. Whether or not the concerned
officer or employee complies with the said order is of no
moment aslongasheisnotifiedthereof.
TheOfficeOrders whichwas issued on 11 J anuary 2013
reassigning about 8,000 employees of the Commission on
Audit was likewisemade effectiveon 11 J anuary 2013. Both
dates fall before the onset of the election ban on transfer,
which started on 13J anuary 2013, as provided in Comelec
2 G. R. No. 115962, February 15, 2000
Page 7 of 8
ResolutionNo. 9581. Wehaveattached herewith copiesof the
OfficeOrdersissuedbyCOAforyour reference.
We have approved on 05 February 2013 the earlier
request of the Commission onAudit for authority to transfer
its higher level employees, such as Assistant Commissioners,
Directors, SupervisingAuditors, etc.
Thus, wemost respectfully submit that noprior approval
fromtheCommissiononElectionsisrequiredforthetransfers
effectedbefore 13J anuary 2013. These transfers caused by
theCOAChairperson weremadeoutsideoftheelectionban.
However, the transfers effectedafter 13J anuary 2013
needs prior approval fromtheCommissiononElections.
Thepresent request of COAreveals sufficient compliance
withtherequirements as stated above. Moreover, the reasons
offeredin support of the request is justified, it being stated
therein that the movement is beingdoneinpursuance of the
unified/package audit approach, which the COA recently
adopted for implementation beginning J anuary 2013, and to
carry out their audit focus during the electionperiodon the
three (3)areas which they believeneedvigilanceand special
attention, namely: (i)election spending that couldbesourced
frompublic money; (ii)fund transfers fromone government
level/agency to another, that could be used for election
spending; and (iii)"ghost employees", that couldbeused for
electioneering.
IN VIEW OF THE FOREGOING, the LawDepartment
RECOMMENDS to:
1. Declare that the transferayreassigriments /
designations of its employees effected before 13
J anuary 2013 are NOT coveredby the ban, subject
hereof; and
2. APPROVE the present request of Chairperson Maria
Gracia M. Pulido Tan covering the proposed
transfer /reassignment/ designation of its employees
effectedafter 13J anuary 2013.
Page8of 8
Respectfully submitted.
~
ATTY. ESMERALDA AMORA-LAD~
Director IV~
By virtue of the authority granted upon me under
COMELECResolution No. 9 ,pro lgated on 29 J anuary
2013, this request ishereby PPROVED DISAPPROVED.
r
For the Commission:
S. BRILLANT
YCh
C
coo:l15156
o airman.
, JR.
"