COA v.

Hinampas
Aug 7, 2007 | J. Garcia (Jesse)
SUMMARY
These are five consolidated petitions for review assailing
the decisions of the CA which overturned the
Ombudsman's actions on the premise that the
Ombudsman's administrative disciplinary power is
merely recommendatory (Tapiador doctrine). The SC
ruled that the Tapiador doctrine is mere obiter. The
OMBs powers are not merely recommendatory. The
office was given teeth to render this constitutional body
not merely functional but also effective. It has the power
to DIRECTLY REMOVE erring public officials EXC
Congress and Judiciary.

cases pursuant to the obiter dictum in

Tapiador v. Office of the Ombudsman.
b) Same case earlier resolved by DPWH res
judicata bars the OOMB from exercising its
administrative disciplinary authority
c) The reliance in good faith on the documents
submitted to the respondents by the contractors,
coupled with lack of undue injury to the
government, cannot give rise to administrative
liability
2) G.R. No. 160410 (Public money used to buy gift
checks the amount of which was used by the
employees for their personal benefit)

1) G.R. No. 158672 (Awarding of projects to

unqualified bidders)

Marte filed with the OOMB a complaint charging Dr.

Apolonio and Montealto, both officers of the National
Book Development Board (NBDB), with Grave
Misconduct, Dishonesty, and Conduct Prejudicial to the
Best Interests of the Service.

Gapuzan filed a lettercomplaint with the Office of the

Ombudsman (OOMB) alleging anomalies in the conduct
of public biddings by the Office of the District Engineer,
First Engineering District of Agusan del Sur and the
collusion of licensed private contractor Engr. Rafael A.
Candol, representing JTC Development, Construction
and Supply and NBS Construction under a joint venture
agreement. The lettercomplaint alleged that, despite
these firms being holders of small licenses entitled
only to projects costing not more than P3 M on a
single undertaking, Engr. Candol was awarded 7
projects of more than P3 M each.

Marte alleged that Montealto wrote a letter to Apolonio

requesting that a cash advance in the amount of
P88,000 be issued in Apolonio's name to cover the cost
of supplies and materials, food and other miscellaneous
expenses for an upcoming Team Building Workshop for
NBDB employees. As requested, Apolonio secured a
cash advance in her name, and, in due course a check
for P88,000.00 was issued. Apolonio encashed the
check and used P80,000 to purchase gift checks from
SM North Edsa. The gift checks were then distributed to
the members of the NBDB Secretariat who attended the
seminar workshop.

OOMB endorsed the letter-complaint to the COA for

audit investigation. The COA report recommended the
filing of
Criminal charges against Engr. Candol and the
members of the Agusan del Sur 1st Engineering
District PreQualification, Bids and Awards
Committee (PBAC)
Administrative charges against the same PBAC
members for negligence and failure to properly
validate the veracity/authenticity of the
documents submitted in the prequalification
process of JTC and NBS, resulting in the award
of 7 projects to unqualified contractors

The Ombudsman found them guilty because they have

misapplied the amount of P88,000 for their own benefit
and of others who participated in the said seminar
workshop, and stated the observation that it has become
apparent that their respective fiscal responsibilities were
not observed.

FACTS

A verification with the Philippine Contractors

Accreditation Board (PCAB) of the licenses submitted by
JTC and NBS revealed that the PCAB file did not
reconcile with those submitted to the PBAC, particularly
on the category/GP size range.
The Ombudsman found sufficient evidence to warrant
the filing of criminal cases and administrative cases
(same findings as COA report). In a decision, the
Ombudsman found them GUILTY.
CA REVERSED OMB.
a) The Ombudsman cannot implement its
decisions in administrative disciplinary

CA REVERSED OMB. The OOMB does not have the

authority to directly dismiss government employees from
public service based on the Tapiador doctrine.
3) and 4) G.R. Nos. 160605 and 160627 (Director III of
BOC made misrepresentation in personal data sheet
that he is a graduate of Manila Central)
Rojas, a Special Agent I of the Bureau of CustomsEnforcement and Security Service (BOCESS), filed a
complaint with the OOMB against his superior, Danao
(Director III) for Dishonesty. The complaint alleged that
Danao had falsely made it appear in his personal data
sheets (PDS) that he is a 1972 graduate of the Manila
Central University (MCU) with a course in Bachelor of
Science in Business Administration (BSBA). Rojas
submitted a Certification issued by MCU stating that per
its records, there is no graduate of BSBA for the year
1972 by the name of Virgilio M. Danao.

OMB found Danao guilty and dismissed him from

service.
CA REVERSED OMB due to the lack of an NBI report
proving that the handwritings and signatures on the PDS
in question really belonged to respondent Danao. It also
cited Tapiador, that the Ombudsman has no power to
impose the penalty of dismissal.
5) G.R. No. 161099 (BOC assessed taxes based on
undervalued
amounts
in
spurious
invoice
documents)
Samsung imported cellular phones with no value
declared for customs purposes. Samsung submitted with
the BOC spurious commercial invoices covering the
shipments for processing, as well as fake National
Telecommunications Commission (NTC) permit to import
cellular phones. Customs Examiners appraised the
shipments based on these invoices which contained
undervalued amounts. The units were eventually
released from the BOC warehouse upon payment of
taxes.
An administrative complaint was filed against the
concerned Customs officials with the OMB. The Graft
Investigation Officer exonerated them from the charges.
But Overall Deputy OMB found them guilty on review.
CA REVERSED OMB on the ground that OMBs
disciplinary powers are merely recommendatory.
ISSUE
W/N the disciplinary power of the Ombudsman is merely
recommendatory in nature
HELD
NO. The Tapiador case made reference to the following
provision in the Constitution:
Section 13. The Office of the Ombudsman shall have the
following powers, functions, and duties: xxx xxx xxx
(3) Direct the officer concerned to take appropriate action
against a public official or employee at fault, and recommend
his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith.

However, the word recommend must be taken in

conjunction with the phrase and ensure compliance
therewith.

A cursory reading of Tapiador reveals that the main point

of the case was the failure of the complainant therein to
present substantial evidence to prove the charges of the
administrative case. The statement that made
reference to the power of the Ombudsman is, at
best, merely an obiter dictum and, as it is unsupported
by sufficient explanation, is susceptible to varying
interpretations, as what precisely is before us in this
case.
The powers of the Ombudsman are not merely
recommendatory. His office was given teeth to render
this constitutional body not merely functional but also
effective. Thus, we hold that under RA 6770 and the
1987 Constitution, the Ombudsman has the
constitutional power to directly remove from
government service an erring public official other than a
member of Congress and the Judiciary.
Individual resolution of the cases
1) G.R. No. 158672
Res judicata cannot be made to apply. It is apparent
from the facts on record that the Ombudsman had
already acquired jurisdiction over the case when the
DPWH learned of it. Furthermore, the DPWHs
investigation did not qualify as a quasijudicial proceeding
wherein necessarily respondents are named, offenses
are charged, and parties are heard (factfinding
investigation). The factual findings of the OOMB, when
supported by substantial evidence, are conclusive.
CA decision REVERSED. OMB decision STANDS
respondents are guilty.
2) G.R. No. 160410
REVERSED. Sole basis is Tapiador doctrine.
3) and 4) G.R. Nos. 160605 and 160627
The Danao cases present an instance where there is no
substantial evidence to back up the OOMB's decision. it
does not appear that it was respondent Danao who
accomplished the questioned PDS. Nor is there any
proof that the signatures and thumbmarks thereon are
his. It cannot be assumed that the PDS was prepared,
signed and submitted by Danao, especially in light of his
denial. CA decision UPHELD.