A.M. No. mtj-16-1870

EN BANC

June 6, 2017

A.M. No. mtj-16-1870

RE: ANONYMOUS LETTER COMPLAINT, Complainant
vs.
JUDGE DIVINA T. SAMSON, Municipal Circuit Trial Court, Mabini-Pantukan, Compostela Valley, and UTILITY WORKER FRANCISCO M. ROQUE, JR., Municipal Circuit Trial Court, Mabini-Pantukan, Compostela Valley, Respondents

D E C I S I O N

PERALTA, J.:

This is an administrative complaint against respondent Judge Divina T. Samson of the Municipal Circuit Trial Court (MCTC) of Mabini-Pantukan, Compostela Valley for misconduct and against respondent Francisco M. Roque, Jr., a utility worker in the court of respondent Judge Samson, for dishonesty and falsification.

The facts are as follows:

On July 11, 2013, the Office of the Court Administrator (OCA) received an anonymous letter-complaint1 charging respondent Judge Divina T. Samson with misconduct for hiring co-respondent Francisco M. Roque, Jr. as Utility Worker I in her court despite knowing that respondent Roque was convicted in Criminal Case No. 133882 for illegal possession of explosives, as she was the public prosecutor who handled the case, and for knowingly abetting the concealment of such fact, which led to Roque's appointment in the Judiciary. The complaint also charged respondent Roque with dishonesty and falsification for the untruthful entries he made in his Personal Data Sheet, particularly that he had not been formally charged and convicted of an offense.

Respondent Roque was convicted of the crime of illegal possession of explosives3 in Criminal Case No. 13388 by the Regional Trial Court (RTC) ofTagum City, Branch 1, Davao del Norte in an Order issued on June 1, 2005. Respondent Roque was sentenced to suffer an indeterminate penalty of six months of arresto mayor, as minimum, to three years, six months and twenty days of prision correccional, as maximum, including all the accessory penalties provided by law. Respondent Roque immediately applied for probation, which was granted by the RTC of Tagum City, Branch 1 in an Order dated July 25, 2005. Upon the motion of Lily Anne B. Cabonce, Probation and Parole Officer II of Davao City, respondent Roque was discharged from his probation by Executive Judge Isaac G. Robillo, Jr. of the RTC of Davao on July 18, 2008.

Respondent Roque applied for the position of Utility Worker I in the court of respondent Judge Samson. Despite having been convicted of the crime of illegal possession of explosives, in his Personal Data Sheet dated June 12, 2008, Roque answered "No" to these questions:

37.a. Have you ever been formally charged?

38. Have you ever been convicted of any crime or violation of any law, decree, ordinance or regulation by any court or tribunal?

Respondent Judge Samson, who knew of respondent Roque's conviction of the crime of illegal possession of explosives, as she was the public prosecutor who handled his case, favorably recommended respondent Roque for the position of Utility Worker I in her court even if she knew that he was not yet discharged from probation at that time. Respondent Roque was appointed to the position on October 17, 2008 and started working as Utility Worker on the said date.

The complainant alleged that the position of Clerk II in the trial court remains vacant despite the availability of several qualified applicants for the reason that respondent Judge Samson is reserving it for someone else, presumably respondent Roque. Moreover, an employee named Janet G. dela Cruz allegedly continues to hold the position of Court Stenographer I despite her incompetence and lack of knowledge about the job.

Further, the complainant alleged that respondent Judge Samson has been tolerating the daily presence in her sala of her 62-year-old sister Rachel Tabanyag-Verzola, who wears the court uniform although she is not a court employee. Complainant said that Verzola is like a fixer/swindler and she entertains litigants, including those who wish to be wed by respondent Judge Samson.

In her Comment,4 respondent Judge Samson admitted that she knew that respondent Roque was convicted of the crime of illegal possession of explosives. However, she countered that the hiring of respondent Roque as Utility Worker I was not irregular, but proper, because he was already discharged after having served his probation. She inquired from Edgar Perez and Florida Ayaso, both from the Probation and Parole Office of Davao del Norte, as to the propriety of respondent Roque's application and, likewise, sought the recommendation of then Executive Judge Hilarion Clapiz, Jr. on the matter. They all assured her that a final discharge of a probation restores all civil rights lost or suspended as a result of the conviction.

Respondent Judge Samson dismissed as preposterous the insinuation that she was reserving the position of Clerk II for respondent Roque, since he is only a high school graduate and not qualified for the position requiring civil service eligibility and two years of college education.

Respondent Judge Samson did not address the allegation that she had been tolerating the presence in her sala of her older sister Rachel Verzola, who allegedly wears the official uniform even if she is not a court employee. However, she dismissed the charge that Verzola was a fixer/swindler as malicious. She challenged the complainant to come up with evidence of fixing or swindling and file the charge in court, and she will step down from her position if the charge is proved. She suspected that the anonymous complainant was Nelda Britanico, a court stenographer in her sala, who allegedly has a penchant for filing anonymous complaints to conceal her inefficiency and incompetency at work.

Respondent Judge Samson prayed that the complaint be dismissed for lack of cause of action.

In his Affidavit5 dated October 23, 2013, respondent Roque admitted that he was convicted in Criminal Case No. 13388. He said that he was a probationer from June 2005 to July 2008. He was discharged from probation on July 18, 2008 by virtue of an Order issued on the same date by then Executive Judge Isaac G. Robillo, Jr. of the RTC of Davao City.

Respondent Roque stated that during his probation, he attended several seminars and open forum where he asked Probation Officer Lily Anne Cabonce if probationers could be employed or travel abroad after having been discharged by the court. Cabonce replied in the affirmative and assured him that his discharge from probation would restore his civil rights and his probation record would be considered confidential and would not be opened to the public except upon court order.

Respondent Roque said that he learned about the vacant position of Utility Worker I at the MCTC of Mabini-Pantukan, Compostela Valley, so he applied for the said position in order to support himself and his son. When he applied for the position, respondent Judge Samson told him that she would refer his case first to the Provincial Probation Officer Edgar Perez. Respondent Roque averred that his application was made in good faith and based on the assurance of his probation officer and the favorable result of the referral of his application by respondent Judge Samson to the Probation Office. Further, respondent Roque said that when he applied for clearance from the National Bureau of Investigation (NBI), his conviction and probation were not indicated in his NBI clearance.

This administrative case raises these issues:

(1) Whether or not respondent Roque is liable for dishonesty and falsification for failing to disclose in his Personal Data Sheet that he was charged of a criminal offense and convicted of the crime charged.

(2) Whether or not respondent Judge Samson is liable for violation of the Code of Judicial Conduct for her complicity in the appointment of respondent Roque to the judiciary despite knowing that he was not yet discharged from probation when he applied for the position of Utility Worker I in her court.

On February 15, 2016, the OCA submitted a Report6 and recommended that this complaint be re-docketed as a regular administrative matter. It found respondent Roque guilty of dishonesty and falsification of his Personal Data Sheet and recommended his dismissal from the government service, while it found respondent Judge Samson guilty of misconduct and recommended that she be fined in the amount of ₱20,000.00. Moreover, the OCA found that the other allegations against respondent Judge Samson on appointing an underqualified employee, Janet de la Cruz, and allowing her sister Rachel Versola to be a fixer in her court to be unsubstantiated with substantial evidence.

The Court agrees with the findings of the OCA, but modifies the recommended penalties to be imposed.

In regard to respondent Roque, Executive Judge Isaac G. Robillo, Jr. of the RTC of Davao City issued an Order discharging him from probation on July 18, 2008. However, the records show that respondent Roque applied for the position of Utility Worker I in June and accomplished his Personal Data Sheet on June 12, 2008 before he was discharged from probation. It is clear that when respondent Roque applied for the position of Utility Worker I, he was still a probationer.

However, the fact that respondent Roque was still a probationer when he applied for the position of Utility Worker and accomplished his Personal Data Sheet did not disqualify him from applying for the position. In Moreno v. Commission on Elections, 7 the Court clarified that the grant of probation suspends the imposition of the principal penalty of imprisonment as well as the accessory penalties of suspension from public office and from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage. It held:

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence but is rather, in effect, a .suspension of the imposition of sentence. We held that the grant of probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as the accessory penalties of suspension from public office and from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage. We thus deleted from the order granting probation the paragraph which required that petitioner refrain from continuing with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prision correccional in its minimum period imposed upon Moreno were similarly suspended upon the grant of probation.

It appears then that during the period of probation, the probationer is not even disqualified from running for a public office because the accessory penalty of suspension from public office is put on hold for the duration of the probation.

Clearly, the period within which a person is under probation cannot be equated with service of the sentence adjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation suspends the execution of the sentence. During the period of probation, the probationer does not serve the penalty imposed upon him by the court but is merely required to comply with all the conditions prescribed in the probation order.8

From the foregoing jurisprudence, it is clear that when respondent Roque was granted probation, not only was the imposition of the principal penalty of imprisonment suspended, but the accessory penalty of suspension from the right to follow a profession or calling was also suspended. Hence, respondent Roque retained the right to seek employment and was, therefore, not disqualified to apply for the position of utility worker in the court when he was still a probationer. However, respondent Roque had the obligation to disclose the fact that he had been formally charged and convicted of an offense in his Personal Data Sheet and cannot justify his non-disclosure of such fact by invoking the confidentiality of his records under the Probation Law.

Under Section 179 of the Probation Law, the confidentiality of records of a probationer refers to the investigation report and supervision history of a probationer taken under the said law, which records shall not be disclosed to anyone other than the Probation Administration or the court concerned. However, the Probation Administration and the court concerned have the discretion to allow disclosure of the confidential records to specific persons and the government office/agency stated in the Probation Law. The confidentiality of the said records is different from respondent Roque's obligation to answer truthfully the questions in his Personal Data Sheet, as the accomplishment of the Personal Data Sheet is a requirement under the Civil Service Rules and Regulations in connection with employment in the government.10 The Personal Data Sheet is the repository of all information about any government employee and official regarding his personal background, qualification, and eligibility. 11 Respondent Roque, therefore, had the obligation to reveal the fact that he had been formally charged and convicted of a criminal offense to enable the Selection and Promotion Board for Lower Courts to correctly determine his qualification for the position applied for. The Office of the Court Administrator aptly stated that by respondent Roque's false statement in his Personal Data Sheet making it appear that he had a spotless record, he gained unwarranted advantage over other qualified individuals, especially that he was also recommended by respondent Judge Samson for the position.

The falsification in respondent Roque's Personal Data Sheet is a dishonest act related to his employment. Dishonesty is the concealment or distortion of truth, which shows lack of integrity or a disposition to defraud, cheat, deceive or betray and an intention to violate the truth. 12

CSC Resolution No. 06-0538 provides the rules on classifying the offense of Dishonesty and the proper penalty to be imposed based on the factual circumstances of the case. The pertinent provisions of Resolution No. 060538 are as follows:

Section 2. Classification of Dishonesty-The classification of the offense of Dishonesty and their correspondent penalties are as follows:

a. Serious Dishonesty punishable by dismissal from the service.

b. Less Serious Dishonesty punishable by suspension from six (6) months and one (1) day to one (1) year for the first offense and dismissal from the service for the second offense.

c. Simple Dishonesty punishable by suspension of one (1) month and one (1) day to six (6) months for the first offense; six (6) months and one (1) day to one (1) year suspension for the second offense; and dismissal from the ser1ice for the third offense.

Section 3. Serious Dishonesty -- The presence of any one of the following attendant circumstances in the commission of the dishonest act would constitute the offense of Serious Dishonesty:

a. The dishonest act caused serious damage and grave prejudice to the Government;

b. The respondent gravely abused his authority in order to commit the dishonest act;

c. Where the respondent is an accountable officer, the dishonest act directly involves property, accountable forms or money for which he is directly accountable and the respondent shows an intent to commit material gain, graft and corruption;

d. The dishonest act exhibits moral depravity on the part of the respondent;

e. The respondent employed fraud and/or falsification of official documents in the commission of the dishonest act related to his/her employment;

f. The dishonest act was committed several times or in various occasions;

g. The dishonest act involves a Civil Service examination irregularity or fake Civil Service eligibility such as, but not limited to impersonation, cheating and use of crib sheets;

h. Other analogous circumstances.

The falsification in respondent Roque's Personal Data Sheet is a dishonest act related to his employment. Dishonesty is the concealment or distortion of truth, which shows lack of integrity or a disposition to defraud, cheat, deceive or betray and an intention to violate the truth.

As the Court has stated in the recent case of Alfornon v. Delos Santos, 13 we do not automatically dismiss dishonest government employees; rather, their penalty would depend on the gravity of their dishonesty. Rule IV, Section 53 of the Civil Service Rules provides mitigating circumstances, among others, that may be allowed to modify the penalty, such as length of service in the government, good faith, and other analogous circumstances.14 Jurisprudence is replete with cases where we lowered the penalty of dismissal to suspension taking into account the presence of mitigating circumstances.15 Office of the Court Administrator v. Aguilar16 enumerated cases 17 wherein the Court reduced the administrative penalties imposed for equitable and humanitarian reasons.

In Alfornon v. Delos Santos, 18 the petitioner therein, when she became a permanent employee as Administrative Aide IV in the Municipality of Argao, Cebu, answered "No" to the question in her PDS about whether she had ever been formally charged despite the fact that she was previously charged with the crime of estafa in the RTC ofLapu-Lapu City, Cebu before she was employed in the government. The Court held that while the falsification in Alfomon's PDS can be considered as a dishonest act related to her employment, it found that suspension was the more proportionate penalty for her dishonesty. The Court considered Alfomon's continued service to the Municipality of Argao, Cebu since 2003, among others, in holding that she only deserved to be suspended for six 6 months, as her outright dismissal from the service would be too harsh.

In In the Matter of: Anonymous Complaint for Dishonesty, Grave Misconduct and Perjury Committed by Judge Jaime E. Contreras (Jn His Capacity as then 4th Provincial Prosecutor of Libmanan, Ca-marines Sur), 19 respondent judge, in his application for a position in the Judiciary, failed to disclose in his Personal Data Sheet that a previous administrative case was filed against him when he was the 4th Assistant Provincial Prosecutor of Libmanan, Camarines Sur. The Court found him guilty of dishonesty and penalized him with suspension from the service for one year without pay, taking into account that he had been in the government service for more than 30 years and it was his first offense as a member of the bench.

In Office of the Court Administrator v. Flores,20 the respondent therein, who was a Court Legal Researcher II in the RTC of Quezon City, was charged with dishonesty for failure to disclose in her Personal Data Sheet her suspension and dismissal from her previous employment. The Court imposed the penalty of suspension for six months without pay, considering that respondent had been in the government service for 14 years and it was her first offense during her employment in the Judiciary.

In Advincula v. Dicen, 21 the petitioner therein, who was the Provincial Agriculturist in Samar, declared in his Personal Data Sheet that there were no pending administrative and criminal cases against him and that he had not been convicted of any administrative offense, although there were pending criminal and administrative cases against him, and he had already been convicted of the administrative offense of simple misconduct. The Court affirmed the Decision and Resolution of the Court of Appeals affirming the Decision of the Office of the Ombudsman-Visayas that petitioner was guilty of misconduct and penalized with suspension from office for six months without pay.

In Yalung v. Pascua,22 respondent judge, in his application for promotion, misrepresented in his PDS that he had never been charged with violating any law, decree, ordinance or regulation despite the fact that two administrative cases and one criminal case had been filed against him, although these cases were later dismissed. The Court penalized him with suspension �for six months, taking into consideration that he had been in the government service for 26 years and that he had no prior administrative record as the cases against him were eventually dismissed.

In the instant case of respondent Roque, the penalty of suspension for six months without pay is proper, considering that he was already discharged from probation on July 18, 2008 when he was appointed to the position of Utility Worker I on October 17, 2008, or he was appointed to the position almost three months after his discharge from probation, and he has been in the government service for almost nine years as a reformed member of society. We take the benevolent stance to give him a chance to serve in the government, as this is his first offense as an employee in the Judiciary.

As regards respondent Judge Samson, she contends that respondent Roque applied for the position of Utility Worker in her court after his discharge from probation, but the records show that respondent Roque accomplished his Personal Data Sheet on June 12, 2008 or more than a month before he was discharged from probation on July 18, 2008. When respondent Roque applied for the position of Utility Worker I in her court, respondent Judge Samson knew that he was not yet discharged from probation and yet she recommended respondent Roque for the position in a recommendation letter dated June 3, 2008, which forms part of the employment record of respondent Roque in the Court. As the Presiding Judge of the Court, respondent Judge Samson should have been circumspect and waited for the final discharge of respondent Roque before she entertained his application and gave him her favorable recommendation, as it is only upon the final discharge of respondent Roque from probation that his case is deemed terminated and all his civil rights lost or suspended are restored. 23 Her act violates Canon 2 of the Code of Judicial Conduct, thus:

CANON 2 - A JUDGE SHOULD A VOID IMPROPRIETY AND APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES

Rule 2.01 --A judge should so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary.

x x x x

Rule 2.03 - A judge shall not allow family, social, or other relationships to influence judicial conduct or judgment. The prestige of judicial office shall not be used or lent to advance the private interests of others, nor convey or permit others to convey the impression that they are in a special position to influence the judge.

Under Rule 140 of the Rules of Court, gross misconduct constituting violations of the Code of Conduct is a serious charge which may be sanctioned by: (1) Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations; Provided, however, that the forfeiture of benefits shall in no case include accrued leave credits; (2) suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or (3) a fine of more than ₱20,000.00 but not exceeding ₱40,000.00.

WHEREFORE, the Court finds respondent Judge Divina T. Samson guilty of gross misconduct and imposes on her a fine in the amount of Twentyfive Thousand Pesos (₱25,000.00), while the Court finds respondent Francisco M. Roque, Jr. guilty of Serious Dishonesty and imposes on him the penalty of suspension for six (6) months without pay, with a stem warning that the commission of a similar offense shall be dealt with more severely.

SO ORDERED

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO
Chief Justice

ANTONIO T. CARPIO
Associate Justice PRESBITERO J. VELASCO, JR.
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice JOSE CATRAL MENDOZA
Associate Justice
BIENVENIDO L. REYES
Associate Justice ESTELA M. PERLAS-BERNABE
Associate Justice
MARVIC M.V.F. LEONEN
Associate Justice FRANCIS H. JARDELEZA
Associate Justice
ALFREDO BENJAMIN S. CAGUIOA
Associate Justice (On wellness leave)
SAMUEL R. MARTIRES
Associate Justice

NOEL GIMENEZ TIJAM
Associate Justice

Footnotes

* On official leave.

** On wellness leave.

1 Rollo, pp. l-A-3.

2 Id. at 4; entitled "People v. Francisco Roque, Jr.".

3 Presidential Decree No. 1866 (1983), Sec. 3.

4 Rollo, pp. 35-42.

5 Id. at 47-48.

6 Id at 67-73.

7 530 Phil. 279 (2006).

8 Id. at 288-289.

9 P.D. No. 968, Sec. 17. Confidentiality of Records.-The investigation report and the supervision history of a probationer obtained under this Decree shall be privileged and shall not be disclosed directly or indirectly to anyone other than the Probation Administration or the court concerned, except that the court, in its discretion, may permit the probationer or his attorney to inspect the aforementioned documents or parts thereof whenever the best interest of the probationer makes such disclosure desirable or helpful Provided, Further, That, any government office or agency engaged in the correction or rehabilitation of offenders may, if necessary, obtain copies of said documents for its official use from the proper court or the Administration. (Emphasis supplied.)

10 Inting v. Tanodbayan, 186 Phil. 343, 348 (1980).

11 Advincula v. Dicen, 497 Phil. 9,79, 990 (2005).

12 CSC Resolution No. 060538, Sec. 2.

13 G.R. No. 203657, July l l, 2016.

14 Office of the Court Administrator v. Aguilar, 666 Phil. 11, 22-23 (2011).

15 Alfornon v. Delos Santos, supra note 13, citing Office of the Court Administrator v. Flores, 603 Phil. 84, 93 (2009), citing OCA v. !bay, 441 Phil. 474 (2002); OCA v. Sirios, 457 Phil. 42 (2003). See also Office of the Court Administrator v. Aguilar, supra.

16 Supra note 13, at 23.

17 Id. at 23-26, citing Office of the Court Administrator v. Flores, 603 Phil. 84 (2009); Concerned Employees of the Municipal Trial Court of Meycauayan, Bulacan v. Larizza Paguio-Bacani, Branch Clerk of Court II, Municipal Trial Caurt of Meycauayan, Bulacan, 611 Phil. 630 (2009); Concerned Employee v. Roberto Valentin, Clerk II, Records Division, Office of the Court Administrator, 498 Phil. 347 (2005); Re: Administrative Case for Dishonesty Against Elizabeth Ting, Court Secretary I, and Angelita C. Esmerio, Clerk 111, Office of the Division Clerk of Court, Third Division, 502 Phil. 264 (2005); Atty. Reyes-Domingo v. Morales, 396 Phil. 150 (2000); Floria v. Sunga, 420 Phil. 637 (2001); Concerned Taxpayer v. Norberto Doblada, Jr., 507 Phil. 222 (2005); De Guzman, Jr. v. Mendoza, 493 Phil. 690 (2005).

18 Supra note 13.

19 A.M. No. RTJ-16-2452, March 9, 2016.

20 Supra note 14.

21 Supra note 11.

22 411 Phil. 765 (2001).

23 Presidential Decree No. 968, Sec. 16. Termination of Probation. - After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon the case is deemed terminated. The final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation on was granted. The probationer and the probafon officer shall each be furnished with a copy of such order.

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