G.R. No. 219876 - Dissenting Opinion




G.R. No. 219876, October 13, 2021, ♦ Decision, Lazaro-Javier, [J] ♦ Dissenting Opinion, Caguioa, [J] [ G.R. No. 219876. October 13, 2021 ] JAIME V. SERRANO, PETITIONER, VS. FACT-FINDING INVESTIGATION BUREAU, OFFICE OF THE DEPUTY OMBUDSMAN FOR THE MILITARY AND OTHER LAW ENFORCEMENT OFFICES, RESPONDENT. DISSENTING OPINION CAGUIOA, J.: The Court of Appeals1 (CA), in the assailed Decision2 dated January 29, 2015 and Resolution3 dated August 10, 2015 in CA-G.R. SP No. 131258 affirmed the ruling of the Office of the Ombudsman (Ombudsman) in OMB-P-C-12-0503-G that petitioner Jaime V. Serrano (Serrano) is administratively liable for Grave Misconduct and Serious Dishonesty. The ponencia modifies the CA ruling by holding Serrano administratively liable for Grave Misconduct, but not for Serious Dishonesty, viz.: Here, the Court finds that [Serrano's] inaction does not constitute serious dishonesty. The records are bereft of any proof that there was malicious intent on the part of [Serrano] to conceal the truth and make false statements which could render him liable for serious dishonesty. To be sure, even the Ombudsman found that [Serrano] did not conspire with nor act as an accomplice to the principal accused in the corruption charges in relation to the repair and refurbishing contracts. As stated though, the Court agrees that [Serrano's] inaction indeed amounted to grave misconduct. Based on his own defenses, [Serrano] does not deny failing to perform his duties as Resident Auditor of the PNP insofar as the repair and refurbishing contracts are concerned. He did not lift a finger for this transaction. More, such omission appears to have been willful and intentional, thus, constitutive of misconduct. His offense was qualified by his clear and deliberate intent to disregard established rules as embodied in the various COA Circulars he violated x x x x What baffles the Court most is [Serrano's] display of sheer arrogance in claiming that he did nothing wrong. If this is how [Serrano] sees his inaction, there is a serious moral depravity and lack of judgment on his part as he cannot distinguish between right and wrong despite his thirty-seven (37) years in service in the COA. Thus, we agree with the OSG that his length of service should be taken against him as he failed to exhibit the sense of duty required of him as a COA Supervisor and Resident Auditor of PNP. After serving as a State Auditor for thirty-seven (37) years, he should have known better than ignore a P409,740,000.000 transaction.4 While I agree that there is no basis to hold Serrano liable for Serious Dishonesty, I am also of the view that Serrano should only be liable for Simple Misconduct. In Andaya v. Field Investigation Office of the Office of the Ombudsman5 (Andaya), the Court defined misconduct as follows: Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross neglect of duty by a public officer. The misconduct is considered to be grave if it also involves other elements such as corruption or the willful intent to violate the law or to disregard established rules, which must be proven by substantial evidence; otherwise, the misconduct is only simple. In grave misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of an established rule, must be evident. Corruption, as an element of grave misconduct, consists in the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.6 Relevantly, in Office of the Ombudsman v. De Guzman7 (De Guzman), the Court described what constitutes the elements of corruption, willful intent to violate the law, and flagrant disregard of established rules, viz.: Intentions involve a state of mind, which is difficult to decipher. Nevertheless, the true intent of the offender may be ascertained through his/her subsequent and contemporaneous acts, together with the evidentiary facts. In cases involving administrative liability for grave misconduct, the Court ruled in GSIS v. Mayordomo that the element of corruption is present when the public officer unlawfully or wrongfully uses his or her position to procure some benefit at the expense of another. In Office of the Deputy Ombudsman for Luzon v. Dionisio, we held that there is clear intent to violate the rules when the public officers are aware of the existing rules, yet they intentionally chose to disobey them. In Imperial, Jr. v. GSIS, the Court required establishing the public officer's propensity to ignore the rules as clearly manifested in his or her actions to constitute flagrant disregard of the rules.8 Meanwhile, in Yamson v. Castro9 (Yamson), the Court declared that the element of bad faith must be established independently of the transgression before the erring public official may be held liable for a grave offense, viz.: Misconduct is defined as a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer. It becomes grave if it involves any of the additional elements of corruption, such as [willful] intent to violate the law or to disregard established rules, which must be established by substantial evidence. "Corruption, as an element of Grave Misconduct, consists in the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others." Moreover, like other grave offenses classified under the Civil Service laws, bad faith must attend the act complained of. Bad faith connotes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. But to be disciplined for grave misconduct or any grave offense, the evidence should be competent and must be derived from direct knowledge. There must be evidence, independent of the petitioners' failure to comply with the rules, which will lead to the foregone conclusion that it was deliberate and was done precisely to procure some benefit for themselves or for another person. 10 Based on the foregoing cases, therefore, for the misconduct to be considered grave, there must be substantial evidence showing that the public official acted with (1) corruption, (2) willful intent to violate the law, or (3) flagrant disregard of established rules. In the language of Yamson, there must be bad faith. Here, it was shown that Serrano failed to conduct a pre-audit and post audit of the transactions entered into by the Philippine National Police (PNP) for the repair and refurbishing of their light armored vehicles. Both the Ombudsman and the CA, however, recognized that the pre-audit of transactions entered into by government agencies are no longer required under Commission on Audit (COA) Circular No. 95-006.11 Serrano's liability, therefore, lies in his failure to conduct a post-audit of the PNP transactions, which, according to the Ombudsman, violated the COA auditing rules.12 Granting that Serrano violated existing COA auditing rules when he failed to conduct or complete a post-audit of the PNP transactions, the question now becomes whether there is substantial evidence that would show Serrano, in the commission of said infractions, acted with either corruption, clear intent to violate the law, or flagrant disregard of existing auditing rules which would elevate his misconduct to a grave offense. I submit that there is none. As discussed in Andaya and De Guzman, corruption consists in unlawfully and wrongfully using one's station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.13 Here, there is neither proof nor allegation that Serrano benefitted from the anomalous PNP transactions or that he used his position as PNP Resident Auditor to secure benefit for another. It is noteworthy too that he was acquitted as accomplice to the criminal charges of plunder and malversation through falsification of public documents. Likewise, his failure to complete the post-audit does not amount to a flagrant disregard of the existing rules. In Imperial, Jr. v. Government Service Insurance System,14 the Court explained that flagrant disregard of rules is characterized by the public officer's propensity to ignore the rules, viz.: Flagrant disregard of rules is a ground that jurisprudence has already touched upon. It has been demonstrated, among others, in the instances when there had been open defiance of a customary rule; in the repeated voluntary disregard of established rules in the procurement of supplies; in the practice of illegally collecting fees more than what is prescribed for delayed registration of marriages; when several violations or disregard of regulations governing the collection of government funds were committed; and when the employee arrogated unto herself responsibilities that were clearly beyond her given duties. The common denominator in these cases was the employee's propensity to ignore the rules as clearly manifested by his or her actions.15 The fact that this is the first administrative case lodged against Serrano in his 37 years in government service negates any imputation of manifest propensity or inclination to ignore existing rules on his part. Now, the ponencia anchors Serrano's liability for Grave Misconduct on the presence of clear intent to violate the rules. The ponencia holds that there is complete and unjustifiable failure to act on the part of Serrano, which demonstrates willful intent to violate existing auditing rules. It rules that heavy workload does not justify non-compliance with COA Circular No. 95- 006 considering that additional manpower is not needed to inform the PNP management on the non-submission of documents, and that the sheer magnitude of the amount involved should have prompted Serrano to prioritize the transactions. I disagree. There is clear intent to violate rules when the public officer is aware of the existing rules, yet he or she chose to disobey them. Although intention is a state of mind, it can be determined through the offender's subsequent and contemporaneous acts, coupled with evidentiary facts.16 A careful review of the records shows that there was no complete inaction on the part of Serrano. As found by the CA, he instructed Technical Audit Specialist Amor J. Quiambao (Quiambao) to conduct an inspection and contract review of the questioned transactions and requested the PNP management to submit the documents needed for the conduct of the review.17 The instruction was given to Quiambao as early as March 2008,18 while the request for documents was made in April 2008 — mere months after the conclusion of the anomalous transactions. PNP's failure to submit the documents necessary for the completion of audit was reported in the PNP Annual Audit Report (AAR) for 2008.19 Indeed, while there was delay on the part of Serrano to order a contract review and inspection of the transactions, still, there is no substantial evidence that this delay was ill-motivated or attended by bad faith. Repeatedly, Serrano recognized his failure to conduct post-audit due to heavy workload and insufficient personnel. Although these justifications may not be enough to exculpate him, his candid acknowledgement of fault negates ill intent on his part. It is likewise worthy to note that in absolving Serrano of Serious Dishonesty, the ponencia finds that "x x x there was [no] malicious intent on [his] part to conceal the truth and make false statement x x x,"20 and that "x x x even the Ombudsman found that [he] did not conspire with nor act as an accomplice to the principal accused in the corruption charges x x x,"21 thereby indicating that he had no ill motive or bad faith. Furthermore, it is also my view that Serrano's failure to issue an Audit Observation Memorandum or to order the disallowance of payment of the transactions cannot be easily interpreted as a tacit approval of the transactions on his part. It bears emphasis that the element of willful intent to violate the rules must be established independently of the infraction committed and must likewise be proven by substantial evidence. In the same vein, it would be presumptuous to conclude that the instruction given by Serrano to Quiambao was a mere afterthought. Serrano may have "x x x failed to give proper attention to his tasks x x x,"22 as argued by respondent, but such failure does not amount to corruption, clear intent to violate the law, or flagrant disregard of existing rules, as to elevate Serrano's misconduct to a grave one. Even granting that the liability of Serrano amounts to Grave Misconduct, I believe that mitigating circumstances are present in this case that would merit the reduction of the penalty of dismissal to one year suspension. On this note, Serrano argues that, should he still be found administratively liable, the penalty of dismissal is too harsh considering the circumstances present in this case: 63. [Serrano] was held administratively liable for his alleged failure to audit the subject transactions. It should be recalled that the complexity and the tremendous volume of government transactions are precisely the reason why COA allows the use of sampling methodologies. These complexity and tremendous volume were aptly considered [in] COA Memorandum No. 85-316-C and COA Memorandum No. 93-316D in acknowledging the fact that it is physically impossible for the auditors to audit all the transactions of an agency. 64. Given the acknowledged reality that audit of government transactions on a 100% basis is physically impossible to accomplish, dismissal from the government service with forfeiture of benefits is so severe a penalty for [Serrano's] failure to audit the subject transactions. It must also be remembered that the special audit team created to audit these transactions took almost 9 months to conduct such audit, then, it would be unreasonable to impose the penalty of dismissal for [Serrano's] failure to audit them. 65. Granting strictly for the sake of argument that [Serrano] may be held administratively liable for his failure to audit the subject transactions. the penalty of dismissal from the government service is not commensurate to the alleged infraction.23 As previously mentioned, Serrano readily admitted that he failed to perform a post-audit. While his justifications of being understaffed and overburdened with work are not necessarily sufficient to relieve him from liability, it nevertheless illustrates the harshness of the penalty imposed. This becomes more apparent when his 37 years of government service will be considered. Although I am mindful of cases that have held that length of service may be considered as an aggravating circumstance when the offense committed is serious or grave or if length of service is a factor that facilitates the commission of the offense,24 I believe that the present case calls for a different treatment. After all, in his many years of government service, it is undisputed that he had an unblemished record and that this is his first offense. These circumstances, in my opinion, should be taken together as consideration for the lowering of the imposable penalty on Serrano. On this point, the Court's pronouncements in the following cases are illuminating: In Civil Service Commission v. Belagan,25 the Court reduced the penalty to a one-year suspension on respondent who was found guilty of a Grave Misconduct, taking into account his numerous awards, his 37 years of service, and the fact that it was his first time to be administratively charged. In Fact-finding and Intelligence Bureau, represented by Atty. Melchor Arthur H. Carandang, Office of the Ombudsman v. J. Fernando U. Campaña,26 a similar penalty was imposed on respondent who was found guilty of Gross Neglect of Duty, in view of 34 years of unblemished record in government service. In Committee on Security and Safety, Court of Appeals v. Dianco,27 the Court imposed the lesser penalty of one-year suspension without pay and demotion instead of dismissal upon respondent who was guilty of Serious Dishonesty and Gross Misconduct, appreciating in his favor the mitigating circumstances of admission of infractions, first offense, restitution of amount involved, and his 30 years of service. Verily, jurisprudence is replete with cases involving grave offenses punishable by dismissal where the Court had nevertheless appreciated mitigating factors to impose a lesser penalty. As applied here, the circumstances in this case warrant the reduction of the penalty to be imposed on Serrano. Lest it be misunderstood, downgrading Serrano's liability or mitigating the penalty to be imposed on him should not be interpreted as a condonation of his infractions. The duty to sternly wield a corrective hand to discipline errant employees and to weed out from the roster of civil servants those who are found to be undesirable comes with the sound discretion to temper the harshness of its judgment with mercy.28 Thus, while the Court does not condone the wrongdoing of public officers and employees, neither will it negate any move to recognize mitigating circumstances present in the case, founded as they are under jurisprudence. Public office is a public trust, and it is the Ombudsman's duty to ensure that public officers and employees are at all times accountable to the people. In this regard, the Ombudsman is empowered to impose penalties in the exercise of its administrative disciplinary authority. Nevertheless, the duty of the Ombudsman as the "protector of the people" should not be marred by overzealousness at the expense of public officers. This is especially true in instances where the supreme penalty of dismissal from service is being imposed. Here, records show that Serrano has been in the government service for 37 years with an unblemished record prior to this case. That the penalty of dismissal would not only mean his separation from service but would also entail the forfeiture of his retirement benefits and perpetual disqualification from holding public office should have impelled the Ombudsman, as well as the reviewing courts, to be more judicious in imputing liability. The zeal of the disciplining authority must always be tempered with evidence. In sum, while I agree with the ponencia that Serrano is not guilty of Serious Dishonesty, I disagree with the finding that he is liable for Grave Misconduct. The efforts exerted by Serrano may not have been enough to completely exonerate him, but, at the very least, these efforts negate any willful intent to violate established auditing rules on his part. For such reason, I believe that he should only be held liable for Simple Misconduct. Nevertheless, even granting that he is liable for Grave Misconduct, the circumstances of this case call for a mitigation of the penalty imposed. Footnotes 1 Fourth Division and Former Fourth Division, respectively. 2 Rollo, pp. 39-53. Penned by Associate Justice Romeo F. Barza and concurred in by Associate Justices Rosmari D. Carandang (now a Member of this Court) and Agnes Reyes-Carpio. 3 Id. at 54-55. 4 Ponencia, pp. 13-14. Emphasis in the original. 5 G.R. No. 237837, June 10, 2019, 904 SCRA 100. 6 Id. at 111-112. Emphasis and underscoring supplied; citations omitted. 7 G.R. No. 214327, May 3, 2021 (Unsigned Resolution), accessed at . 8 Id. at 5. Emphasis and underscoring supplied; citations omitted. 9 G.R. Nos. 194763-64, July 20, 2016, 797 SCRA 592. 10 Id. at 627-628. Emphasis and underscoring supplied; emphasis in the original omitted; citations omitted. 11 See rollo, pp. 660 (Ombudsman Joint Order) and 47 (CA Decision). 12 Id. at 660-661. 13 Supra notes 5 and 7. 14 G.R. No. 191224, October 4, 2011, 658 SCRA 497. 15 Id. at 507-508. Emphasis in the original; citations omitted. 16 Office of the Ombudsman v. De Guzman, supra note 7. 17 Rollo, p. 42. 18 Id. at 13. 19 Id. at 1476. 20 Ponencia, p. 13. 21 Id. 22 Rollo, p. 1457. 23 Rollo, p. 33. 24 Committee on Security and Safety, Court of Appeals v. Dianco, A.M. No. CA-15-31-P, June 16, 2015, 758 SCRA 137, 170. 25 G.R. No. 132164, October 19, 2004, 440 SCRA 578. 26 G.R. No. 173865, August 20, 2008, 562 SCRA 680. 27 A.M. No. CA-15-31-P, January 12, 2016, 779 SCRA 158. 28 Camsol v. Civil Service Commission, G.R. No. 238059, June 8, 2020, accessed at .1âшphi1 The Lawphil Project - Arellano Law Foundation