Legal Memorandum 5

8/10/2019 Legal Memorandum 5

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REPUBLIC OF THE PHILIPPINESCIVIL SERVICE COMMISSIONConstitution Hills, Quezon City

JUAN MIGUEL LUZ , Appellant,

-versus- Case No.

THE EXECUTIVE SECRETARYEDUARDO ERMITA , Appellee.

x---------------------------

Prefatory Statement

Integrity, competence, love of country and dedication to

public service are qualities expected of all public servants. Yet,

those who possess these are often not only unrewarded, but also

punished for standing up for their principles. In a government

where politics can kill a public servants dedication and

enthusiasm for service, the principles of merit, tness, and

security of tenure as well as the rules of the Civil Service

Commission are often on a collision course with the demands of

politics and politicians.

This Appeal by Juan Miguel Luz is a classic case of a good

and honest civil servant, a Career Service Executive Officer, who

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suffers the punishment of termination and later, a transfer, from

no less t han the Office of the President for refusing to perform an

unlawful act and for do ing what he believed was r ight.

The Appellant les this Appeal in the fervent hope that the

resolution of the issues in this case will enrich law and

jurisprudence, instill belief in justic

few who remain vigilant in their g ht against corruption.

The Case

This is an appeal from the Order of the Honorable Executive

Secretary re assigning Appellant Juan Miguel Luz, a Career Service

Executive Officer an d Undersecretary, Finance & Administration of

the Department of Education (hereafter called DepED), to the

Department of Labor and Employment (hereafter called DOLE).

Timeliness of the Appeal

The Appellant received a copy of the Memorandum of the

Appellee Executive Secretary Eduardo Ermita (hereafter called

Executive Secretary) on 04 October 2005, hence this Appeal is

being led on time. A certied true copy of this memorandum is

attached as Annex A .

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The Parties

APPELLANT Juan Miguel Luz (hereafter called Appellant)

is a Filipino, of legal age, residing at 326 St. Joseph Street, North

Concha Cruz Circle, B.F. Executive Homes, Las Pinas City. He is a

Career Service Officer (CESO) and is fully qualied for t he position

of Undersecretary of Education (Finance & Administration) which

he is currently occupying. A certied true copy of his CESO

certication is attached as Annex B. Appellant may be served

with copies of pleadings, notices, orders and other issuances of

this Honorable Office through undersigned counsel.

APPELLEE Eduardo Ermita (hereafter referred to as the

Appellee) is the Executive Secretary who signed the order

reassigning the Appellant to the DOLE.

Facts of the Case

The AppellantsQualications

1. Appellant has sterling qualications for the position of

Undersecretary of the DepED. His previous employment with

Government prior to his position in the DepED was with the

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Presidential Management Staff (Office of the President) during the

Administration of President Corazon C. Aquino. Outside of

government, the Appellant was the associate director of Philippine

Business for S ocial Progress (hereafter ref erred to as PBSP), the

largest social development NGO in the country, and in was a

professor at the Asian Institute of Management, one of Asias

leading business sch ools.

2. As the associate director of PBSP from 1985-87 and

1993-95, he headed training, research and programs development

and organized and led the team that drafted the management plan

for the Third Elementary Education Project (TEEP) of the

Department of Education, Culture and Sports funded by the World

Bank.

3. In 1987, he was appointed Presidential Staff Director of

the Presidential Management Staff in the Office of the Presient

(hereafter referred to as PMS) during the administration of

President Corazon C. Aquino, where he stayed until mid-1991. As

head of the Regional Operations Group and the Political Affairs

Group, he worked on a number of major projects including local

government autonomy and the establishment of the Autonomous

Region in Muslim Mindanao. Because of his experience with

PBSP, he was tasked with setting up the newly created Presidents

Social Fund (PSF), the sou rce of the post-dated checks that gured

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in the events antecedent to the Appellants termination and

subsequent reassignment from the DepED to the Department of

Labor and Employment (DOLE).

4. In January 1991, Appellant became a C areer Executive

Service Officer upon the general instruction of President Aquino

that all presidential appointees secure a CESO eligibility and rank

to shield them from the vagaries of political processes and

changes in presidential administrations and their particular

concerns related to appointments. (See Annex B h ereof.)

5. After four years i n government, Appellant returned to the

private sector. From 1995-97, he was vice president for corporate

affairs at the Far East Bank and Trust Company. From 1998 to

February 2002, he served as director of operations of the APEC

Business Advisory C ouncil, the private sect or ad visory b ody to the

APEC Leaders. Concurrently, he was also an Associate Professor at

the Asian Institute of Management from 1997 to 2002.

6. As part of his community work, the Appellant served as

executive director of the Philippine National Museum Foundation,

a private sector foundation that r aised funds for t he renovation of

the National Museum in time for the countrys Centennial

celebrations in 1998. He also served as trustee of the Heritage

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Conservation Society of the Philippines for two terms and is

currently a trustee of Museo Pa mbata ng Pilipinas .

7. With a Bachelors Degree in Liberal Arts from St. Marys

College of California 1 , a La Salle Christian Brothers institution,

and a Masters Degree in Public Administration from the John F.

Kennedy School of Government, Harvard University, 2 Appellant has

expertise in the elds of community development, government

policy, business strategy and administration, and education

management. This is the reason why former DepED Secretary

Edilberto de Jesus invited him to rejoin government as

Undersecretary of Education in late 2002. Appellant accepted the

offer because he wanted to serve his country by contributing to

reforms in the DepED, which in the mid-to-late-1990s had the

reputation of being one of the most corrupt agencies in

government.

8. Appellant reactivated his CESO rank as conrmed by the

Career Executive Service Board. He took charge of the Finance an d

Administration of the DepED in November 2002. After Secretary

de Jesus left the DepED in August 2004, the Appellant continued

to serve under former Secretary Florencio B. Abad and OIC

Secretaries Ramon C. Bacani and Fe A. Hidalgo, successively.

1 He graduated magna cum laude and garnered two awards for academicexcellence James L. Hagerty Award (School of Liberal Arts) and St. ThomasA uinas Award (!ntegral "rogram).2

He was an #dward S. $ason %ellow in !nternational &e'elo ment.

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Appellants contributionsto reform in the DepED

9. Appellant carried out major reforms in the areas of

nance and management systems. Notable among these were:

Providing direct funding releases from the

National Treasury to scally-autonomous high

schools and school divisions through the Direct

Release System;

Establishing the DepED Procurement Service;

Drafting of a new textbook policy, as well as

designing and organizing the National Textbook

Delivery Program to ensure the timely delivery of

over 50 million quality textbooks to close to

42,000 elementary schools;

Decentralizing the payroll service of elementary

school teachers;

Fixing the a utomatic p ayroll deduction system;

Re-engineering the Departments Provident

Funds 3 in order to have a professional system

Forming Brigada Eskwela (National Schools

Maintenance Week), a project undertaking minor

repairs of schools involving various school

stakeholders, the local community, local

3 The &e artment "ro'ident %und has a nationwide ortfolio of " . *illion in

+ regions)

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government units and the private sector.

Brigada Eskwela signicantly minimized

problems en countered during school openings

10. Since 2002, education reforms, both in terms of

nancial management and support to academic programs of

schools, have helped establish the image of the Department of

Education as one of the ve least corrupt national agencies in the

Social Weather Stations annual Enterprise Survey. This h as been

cause for great pride in DepED considering that it was formerly

one of most corrupt agencies in the su rvey prior t o that period. 4

11. In sum, the Appellant is a h ighly-educated, competent,

honest, and dedicated public servant. His knowledge, competence

and integrity enabled him to generate signicant nancial and

material support from the private sector for schools under the

Departments Adopt-a-School program.

12. Then came a den ing moment in the Appellants career

in the DepED. His integrity was put to a t est when he was asked

to accept post-dated checks amounting to P 20 Million from the

Office of the President purportedly intended for a scholarship

4 &uring the entire ",$A Administration- no rocurement- ersonnel ornancial scandal has roc/ed the &e artment. The lone scandal attributed tothe &e artment in'ol'ed a contro'ersial error0laden textboo/ rocured adecade ago but which are still in the schools. The &e artment recalled thetextboo/ and ut in lace a tighter textboo/ e'aluation rocess to re'ent

such errors from recurring in ublic school textboo/s in the future.

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program of a congressman. Believing that these were against

government accounting and auditing rules as they were devoid of

documentation, he refused to do what he considered as highly

irregular an d contrary t o law. On September 9, 2005, the Appellant

decided to do the right thing and returned the checks to

Malacanang. As the events unfolded, Malacanang lost no time in

punishing him.

Terminated byMalacanang

13. Appellants worries started on 13 September 2005, when

his office rec eived a letter from the Executive Secretary that read:

We wish to thank you for your services as Undersecretary,

Department of Education, effective immediately. A copy of this

letter i s attached as Annex C . Stunned by what was apparently

a termination letter, he sent a query to the Civil Service

Commission on 20 September 2005 asking whether or not he was

terminated and if such was p roper.A copy of this letter is a ttached

as Annex D .

14. On 21 September 2005 Civil Service Commission

(hereafter referred to as CSC) Chairperson Karina Constantino-

David wrote h im a letter st ating that:

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For an undersecretary p osition, the qu alications a re:Bachelors degree, three (3) years supervisoryexperience and Career Service Executive Eligibility(CSEE) or Career Executive Eligibility (CESE).

Considering that you have met all the saidrequirements, the status of your appointment ispermanent. As su ch, you have security of tenure to thesaid position.

As a permanent official, you cannot be removed from your position by virtue of a mere letter. You may only be removed for cause as provided for by law, and after

due process. Considering that t he termination letterdid not mention any cause or reason for yourtermination, it is obvious that the Office of thePresident was working under the mistaken assumptionthat your appointment was not permanent and thus,

you may be separated from the service anytime or at amoments notice.

A copy of Chairperson Karina Constantino-Davids letter is

attached as Annex E .

15. On the sam e date, also responding to Appellants query,

Career Executive Service Board (hereafter referred to as CESB)

Executive Director Mary Ann Fernandez-Mendoza replied that

since the Appellant did not r esign from his p osition, the letter f rom

the Office of the President could not be taken to mean termination

from the ser vice, and that the Appellant may continue performing

his functions as Undersecretary of DepED. A copy of this letter is

attached as Annex F .

16. Appellant immediately prepared a letter informing the

Office of the President that he was going to continue to perform his

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duties and functions as Undersecretary of DepED with no

disrespect intended, and his con cerns were focused principally on

continuing and expanding education reforms. A copy of this letter

is a ttached as Annex G .

17. Two days later, on 23 September 2005, Malacaang

announced to the m edia that appellant had been terminated as

undersecretary (of education) but not as a CESO. This was

modied as to be a reassignment to some other government

position of same rank. This was again modied by the Press

Secretary, who stated that Appellant had resigned as

Undersecretary. On the evening of 26 September 2005, the Press

Secretary was heard on radio stating that appellant was being

allowed to stay as Undersecretary of education. Copies of the

newspaper clippings are attached as Annexes H , H-1 , and H-

2 .

18. On 4 October 2005, Appellant received a M emorandum

from the Appellee dated that same day that read: In the exigency

of service, you are hereby re-assigned from the Department of

Education (DepED) to the Department of Labor and Employment

(DOLE) to a position at least commensurate to your Career

Executive Service (CES) rank. (See Annex A )

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Malacanangspost dated checques

19. The termination letter of the Executive Secretary

received on 13 September 2005 and the Memorandum dated 4

October 2005 were no doubt sparked by the refusal of the

Appellant to accept the POST-DATED checks from the Presidents

Social Fund (hereafter r eferred to as PSF) which were intended for

the scholarship program of Congressman Antonio Diaz (2nd

District, Zambales).

20. On 23 August 2005, the DepED received a letter from

Congressman Diaz stating that President Arroyo had approved P20

Million from the PSF to be used for the congressmans sch olarship

fund in the 2nd District of Zambales. Included in the letter was t he

rst P5 Million as a handwritten check drawn against an

unmarked non-commercial account in the Land Bank branch in

Malacaang. A copy of this letter and the proof that this check

was deposited to the DepED OSEC Trust Account is attached as

Annexes I and I-1.

21. The DepEDs Chief Accountant, Mrs. Olivia San Pablo,

immediately called the Appellant to ask what to do with the check.

Baffled, he requested her to show him the check signed by Deputy

Executive Secretary (DES) Susana Vargas with the handwritten

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Appellant that she was not privy to the Presidents deci

PSF but that the Fund was d isbursed solely at the discretion of the

President. Hence, she continued, the scholarship project as

discussed by the congressman must have been in accordance with

the Presidents instructions.

25. Upon the request of DES Vargas, Appellant agreed to

have the rst P5 Million check deposited into the DepED central

office trust fund but then instructed Ms. San Pablo, DepED chief

accountant, not to transfer an y funds to the Division of Zambales

until the Department received in writing a clear p rogram of work

and the process of disbursement and liquidation from the

congressmans office.

26. On 2 September 2005, three similar checks of equal

amount (P5.0 M each) were forwarded to the DepED accounting

office from the Presidential Management Staff for deposit and

transfer to the sa me d ivision of Zambales. The dates on these p ost-

dated checks were 3 September 2005, 3 December 2005, and 3

March 2006. A certied true copy of these checks are attached as

Annexes J . The Appellant noticed that all three were similarly

handwritten as the rst check in August though they now bore two

signatures, those of DES Susana Vargas and Erlinda Bautista de

Leon as h ead of the PSF.

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27. The DepED accountant reported to the Appellant that

there was no accompanying documentation with the checks,

neither a Special Allotment Release O rder (SARO) 5 nor a Notice of

Cash Allocation (NCA) 6. Moreover, upon checking with both the

Department of Budget and Management (DBM) and the

Commission on Audit (COA), she conrmed that the acceptance of

post-dated checks a re against government rules on accounting and

auditing procedures. Upon the requ est of the Appellant in a letter

dated 06 September 2005, COA Assistant Commissioner Arcadio

Cuenco wrote a letter s tating that:

Please be informed that t he issuance and/or receiptof post-dated checks by government agencies isprohibited under GAO Circular No. 68-110 datedOctober 10, 1968 pertinent portion of which states:

Checks presented for payment must bedrawn by the payor himself and madepayable to the agency or h ead of agencyUnder no circumstance sh all the followingchecks be accepted: (a) checks drawnpayable to the name of the agency head orany of its officers, (b) indorsed checks, (c)postdated checks , (d) stale checks, an d(e) out-of-town checks, except those whichare drawn by the Government or itsinstrumentalities. (emphasis supplied)

A certied copy of the letter of the to COA is attached as

Annex K . A certied copy of the letter of the Commission on

Audit to the Appellant is attached as Annex L . 5 The SARO is the notice from the DBM to a e!artment that informs the "atter that f#n s are no$a""otte an can %e o%"i&ate ' (n effect) the SARO !ro*i es the e!artment $ith the a#thorit+ tos!en f#n s'

6 The ,-A is the notice from the DBM that the cash has %een e!osite or transferre to theacco#nt of the e!artment an can %e ra$n a&ainst' On"+ at this !oint in time can a chec. %e

!re!are an /or re"ease to the !a+ee'

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28. On 6 September 2005, the Appellant received a letter

from Congressman Antonio Diaz dated 5 September 2005

requesting for the transfer of the two cleared checks (21 August

2005 and 3 September 2005) from the DepED central office trust

account to the DepED Division Office of Iba, Zambales. A cer tied

true c opy of this l etter i s a ttached as Annex M .

29. Appellant called DES Vargas on 7 September 2005 to

inquire about the post-dated checks she signed personally

delivered by the congressmans staff. Her reply was st artling. She

sounded perplexed by the Appellants query and asked what the

dates were on the checks. When asked why she did not know the

dates on the checks being the signatory, she told the Appellant

that she usually pre-signed blank checks for the PSF but would

give these directly to the President. She said she was not privy

thereafter t o the d etails o f the ch ecks nor of the p rojects for which

they were intended. Furthermore, she could not understand nor

explain why two of the checks would be post-dated.

30. On the same day the DepED Chief Accountant called

the Appellant with another urgent matter. The Presidential

Management Staff called her and Mr. Mandy Ruiz, the

departments Chief Budget Officer, to inquire if another PSF check

could be deposited directly to the division of Zamboanga del Sur

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for the projects of Congressman Isidro Real, thus by-passing the

central office in an effort to cut down on the overall processing

time for the ch eck.

31. On 08 September 2005, Ms. Maestre of Congressman

Diazs office came to inquire if DepEd had deposited the rst two

checks and if these could already be transferred to the division

office. The Appellant, not wanting to veer from the proper

accounting and auditing procedures, decided to return the four

checks to the Presidents Social Fund including the rst one (21

August 2005) already deposited into the DepED central office trust

account and called the departments Chief Accountant, Chief

Budget Officer and Cashier to his office. The official receipt for the

second check (3 September 2005) was can celled since this official

receipt ha d not yet been given to the Office of the President/PMS

and the check had yet to be deposited into the departments t rust

account.

32. Early on 9 September 2005, Friday, a staff of PMS was

in the Appellants office waiting to pick up the three checks. The

appellant cal led Director Marietta Tamondong of the Presidential

Management Staff and informed her that the amount in the rst

check which had already been deposited would likewise be

returned to PSF but through a DepED check. A certied copy of

the letter documenting the return of the checks is attached as

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Annex N . That s ame day, Appellant informed OIC-Secretary Fe

Hidalgo of these developments and she concurred with his

decision.

33. The day before, Ms. Yvonne Chua of the Philippine

Center f or Investigative J ournalism (hereafter r eferred to a s PCIJ),

having heard of the post-dated checks from her Malacaang

source, came to see t he Appellant to conrm if there were in fact

such checks received by the Department. This was conrmed by

the Appellant. On 11 September 2005, Sunday, she posted the

story on the PCIJ weblog site which became a source of news for

other m edia organizations.

34. Deciding to return all of the checks that constituted the

P20M grant given to Congressman Diaz by t he President through

the Presidents Social Fund, the Appellant, on 10 September 2005

cancelled the Disbursement Voucher for the rst P5.0 M and

instructed Mrs. San Pablo, chief accountant, to return the am ount

to the PSF using a DepED check. A certied copy of the cancelled

voucher with the Appellants marginal note (written instructi

attached as Annex O .

35. On 12 September 2005, the Appellant left for the United

States for a conference in New York City. That same day, the PCIJ

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blog appeared in the Philippine Star. While the Appellant was in

the United States, OIC-Secretary Fe Hidalgo received a letter from

Cong. Antonio Diaz dated 13 September requesting for the release

of the rst P5.0 M (date 21 August 2005). This was eventually

released upon the instructions of OIC-Secretary Hidalgo. A

certied true copy of Cong. Diaz letter is attached as Annex P.

After the release of this amount, the DepED received a Deed of

Donation for the sam e P5.0M signed by Cabinet Secretary Ricardo

Saludo and Undersecretary Ramon Bacani of the DepED,

notarized on 15 September 2005. A certied copy of this Deed of

Donation is at tached as Annex Q .

36. The next day, on 13 September 2005, the DepED

received the letter of termination of the Appellant from the

Executive Secretary. The OIC-Secretary cal led the Appellant on 16

September 2005 while he was still in New York to relay the news.

It will be noted that t he letter of C ong. Diaz (See Annex N ) was

received by the DepEd on that same day, 13 September 2005.

37. On 4 October 2006, Appellant received a M emorandum

signed by Executive Secretary Eduardo Ermita reassigning him

to the Department of Labor and Employment (DOLE), without

specifying a position or a denite period. On the same day, the

Appellant received a letter from DOLE Secretary Patricia Santo

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Tomas dated 23 September 2005, stating that since the Appellant

was being moved from the DepED, she was requesting that he be

reassigned to her department. A certied true cop y of this letter is

attached as Annex R .

38. Hence, the Appellant les this Appeal contesting his

reassignment to the DOLE.

Arguments/Issues

I.

APPELLANT WAS CONSTRUCTIVELYDISMISSED

II.

THE ORDER REASSIGNING THE APPELLANT TO THE DOLE WAS DONE WITH GRAVE ABUSE OF DISCRETION, THEREFORE UNLAWFUL

Appellant, a CESO, may be reassignedor transferred only if the followingrequirements are met: a) thereassignment or transfer must be in theinterest of public service, b) withoutreduction in rank or salary, and c) noreassignment or transfer may be madeoftener than every two years, d) thereassignment or transfer must beeffected only upon the availability of acorresponding position.

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III.

APPELLANTS TRANSFER WAS DONE INBAD FAITH, AND OBVIOUSLY FORPOLITICAL REASONS

D i s c u s s i o n

I. Appellant was constructively dismissed

39. The 4 October 2005 Memorandum mandating the transfer

of Appellant states that :

In the exigency of service, you are hereby re-assigned from the Department of Education (DepEd) tothe Department of Labor and Employment (DOLE) to aposition at least commensurate to your CareerExecutive Service rank. (Emphasis su pplied)

40. The Memorandum, although purportedly merely

reassigning the Appellant to the DOLE, was obviously meant to

kick him out of DepED because of his refusal to tow Malacanangs

line. Especially when viewed in the con text of the an tecedent facts,

this transfer or reassignment is in reality a constructive

dismissal because the Memorandum does not specify what

position the Appellant will occupy in the DOLE and for how long he

would be reassigned there.

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41. Furthermore, there is at pres ent no vacant or available

position of Undersecretary in the DOLE. Without such a position,

the apparent intent of Malacanang is to oat the Appellant as a

punishment, which is n ot allowed by the Civil Service Commission

(See, CSC Resolution No. 548, Aug. 10, 2004). Because the

purpose of the transfer order was to put Appellant on oating

status, the Appellant is deemed to be have been constructively

dismissed. This especi ally so si nce the Appellant would then nd

his si tuation in the DOLE intolerable and humiliating su ch that he

would have to eventually resign from the government service.

42. The Constitution guarantees that no officer or employee

in the Civil Service shall be d ismissed except for ca use a s p rovided

by law. 7 This was b latantly violated by the Appellee, and his gross

bad faith, driven by political motive, is clear

facts. Furthermore, the Supreme Court has held in the case of

Pastor vs. Pasig 8 that an indenite assignment, such as that of

Appellant, is tantamount to a constructive dismissal. In sa

petitioner, a budget officer, was a ssigned to Office of the Municipal

Administrator indenitely. Her assignment was allegedly pending

the investigation of reports that sh e issued advice of allotments

without sufficient cash collection. In her ten-year assignment,

however, no investigation therefore was ever conducted. The

Supreme Court found such indenite assignment as a form of

7 Art' ( B) Sec' 2 3 ) 1987 -onstit#tion'8

382 S CRA 232 (2002).

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constructive dismissal which left petitioner vi rtually on a oating

status. Moreover, the Supreme Court held that an employees

illegal removal cannot b e carried out in the guise of a transfer for

the good of public servi ce, thus:

There is no question that we recognize the validity and indispensable necessity of the well

established rule t hat for t he good of public se rvice and whenever public interest demands, [a] public official

may be temporarily a ssigned or d etailed to other du tieseven over his objection without n ecessarily violatinghis fundamental and legal rights to security of tenurein the civil service. But as we have already stated,such cannot be undertaken when the transfer of theemployee is with a view to his removal and if thetransfer is resorted to as a scheme to lure theemployee away from his permanent position becausesuch attitude is improper as it would in effect result

in a circumvention of the prohibition which safeguardsthe tenure of office of those who are in the civilservice. 9

43. Similarly, in Gloria vs. Court of Appeals 10 and Padolino

vs. Fernandez, 11 the Supreme Court held that an indenite

assignment, i.e. one which does not indicate a particular d uration

or does not appear to be temporary, violates a civil servants

security of tenure.

44. In addition, in Bentain vs. Court of Appeals, 12 the

Supreme Court did not hesitate to declare a transfer motivated by

purposes other than the exigencies of public interest as

tantamount to an illegal dismissal. In the s aid case, petitioner, the

9 Citing Cruz. Vs. Navarro, 66 SCRA 79, 90 (1975).10 338 SCRA 5.11 342 SCRA 442.12

G.R. No. 89452, June 9, 1992.

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are met, and always in good faith. While the Appellee has the

authority to transfer a CESO, he cannot do so in grave abuse of

discretion. The application of the mobility principle to CESOs was

specically laid down in the Revised Policy on Security of Tenure in

the C areer E xecutive S ervice (Revised Policy), 14 to wit:

RESOLVED FURTHER , that notwithstanding thepermanent status of appointment of a third levelofficial, he/she is covered by the mobility principleenshrined under Article IV, Part III of the IntegratedReorganizational Plan, as approved by PresidentialDecree No. 1, as amended, dated September 24, 1972,quoted herein as follows:

e. Assignments, Reassignments and Transfers

x x x x x x x x x

Any provision of law to the contrarynotwithstanding, members of the CareerExecutive Service may be reassigned ortransferred from one position to another;provided that such reassignment ortransfer is m ade in the interest o f publicservice and involves no reduction in rankor salary; provided, further, that nomember shall be reassigned or transferredoftener than every t wo yea rs.

RESOLVED FURTHERMORE, to ensure compliance to(sic) the above-quoted mobility principle, reassignmentor transfer shall be effected only upon theavailability of the corresponding position , i t b eing

understood that a oating status is not within thecontemplation of this p rinciple. Assignment to a CESOpool shall not be considered as a oating status.(Emphasis supplied)

14

Career Executive Service Board Resolution No. 548, August 10, 2004.

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46. Based on the foregoing resolution, the reassignment or

transfer of a CESO must comply with the following requ isites:

a. It must be made in the interest of public service;

b. It must involve no reduction in rank or salary;

c. It must not be made within two years from the

employees last transfer or r eassignment; and

d. It must be effected only upon the availability of a

corresponding position.

47. The Office of the President, represented by the Appellee,

miserably failed to satisfy th e rst and the fourth requisite. Worse,

its action reeks of the unmistakable smell of malice. The

Appellees mere invocation of the clause in the exigency o

does not m ake the Appellants transfer lawful, in the absence of

any convincing proof thereof. The burden of proof is on the part of

the Appellee who seeks to deprive the Appellant of his work, his

right to property.

48. That Appellant is purportedly needed at the DOLE, as

Secretary Patricia Sto. Tom as claims in her letter t o Appellee, is

NOT an exigency of service which warrants Appellants transfer.

Secretary Sto. Tomas letter itself belies any pretense that the

transfer ord er of the Appellant was in the interest of public se rvice.

On the contrary, said letter acknowledges that Appellee already

sought to remove Appellant from the DepED from the very start,

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September 2005. There is no vacant or available Undersecretary

position in the DOLE. In addition, DOLE is allowed three (3)

plantilla Assistant Secretary positions, two (2) of which are a lready

lled-up.

52. The fourth requisite for a lawful transfer of a CESO was

likewise vi olated by the Appellee. If the Appellant is transferred to

DOLE, he will be placed in a humiliating situation because h e will

not get the same rank and status of Undersecretary. Given the

situation of both departments, how can the DOLEs need for

Appellants services take priority over that of

53. Moreover, the Office of the President could not possibly

be blind to the successful reforms spearheaded by the Appellant in

the DepEd, particularly on scal and administrative management.

With Appellants outstanding performance, his transfer to another

department with a completely different and unrelated function for

which he was not trained all the more becomes illogical.

54. It is therefore n ot d ifficult to conclude that Appellants

honesty, professionalism and independence in the performance of

his duties a s the Undersecretary in charge of the nances of the

government agency with the biggest budget, having P118 Billion as

of 2004, prompted the Office of the President to underhandedly

remove him from the DepEd. And for what purpose? Not only to

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punish him, but to serve also as a lesson to others who may be of

like m ind.

55. While t he t ransfer of Career E xecutive Service Officers is

allowed, this can be lawfully done only if the above-mentioned

requirements are existing, and always in good faith. We can be

guided by a case w ith similar issues involving the t ransfer of Atty.

Virgina L. Trinidad, CESO IV, who was an Assistant Commissioner

in the Bureau of Internal Revenue, who was reassigned to a

position that does n ot exist. In the ca se o f Trinidad, Virginia L. Re

Appeal, Reassignment, the CSC ruled in favor of the Appellant in

its Resolution No. 030669 ( 10 June 2003), stating that:

While it is true that reassignment is amanagement prerogative which the Commission doesnot n ormally interfere with, the same is true only, asheld in CSC Resolution No. 96-3651, absent theshowing of grave abuse of discretion. In other words,grave abuse of discretion must be clearly shown inorder that the Commission may take up the cudgelsfor the employee reassigned (MONTIEL, Rolando, CSCResolution No. 94-1006, February 17, 1994. Theauthority under the law is not intended as aconvenient weapon for the appointing authority toharass or oppress a subordinate on the pretext ofadvancing and promoting public interest (INHAYES,Oscar J., CSC Resolution No. 98-16-08, June 24,1998).

III. Appellants transfer was done in bad faith, and obviously for political

reasons

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56. A careful examination of the even ts t hat t ranspired prior

to Appellants t ransfer cl early shows th at Appellees a ct was t ainted

with bad faith, motivated by purely political reasons ui

the Appellant was removed because he was an obstacle to the

wishes of the President that she distributes the Presi

Fund with no restrictions, and even when funds a re not available,

hence the post-dated checks. The Palace demands blind

obedience, and this t he Appellant could not give.

57. Appellee very well knew that Appellant is a C ESO with a

constitutionally guaranteed right to security of tenure, yet it

sought to dismiss Appellant through a termination letter da ted 13

September 2005, only four (4) days after Appellant decided to

transfer back to the PSF the three (3) checks supposedly for

Congressman Diaz. The timing betrays Malacanangs political

motives b ehind Appellants t ermination.

58. Both the CSC and the CESB have written the Appellant

that termination of a CESO without cause and due process of law

is illegal. Hence, in a desperate and fraudulent attempt to lend a

semblance of legality to Appellants removal from the DepEd,

Malacanang qualied on 23 September 2005, i.e. ten (10) days

after t he issuance of the termination letter, that Appellant was

terminated as undersecretary (of education) but not as CESO

( Annex I hereof). Malacanang later changed its stance and

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disguised the termination as a reassignment to some other

government position of the sam e rank.

59. Malacanangs cover-up did not end with its conicting

declarations. Knowing that the termination (disguised as

reassignment) is patently illegal, Malacanang deviously made it

appear that Appellant resigned and that it merely allowed

Appellant to continue its services as some form of accommodation.

Worse, Malacanang declared all these through press releases,

obviously to humiliate Appellant before t he p ublic.

60. This Honorable Commission should not and cannot

sanction such dismissal tainted by bad faith. Just like any other

employer, the government cannot transfer an employee as a result

of discrimination, in bad faith or as a form of punishment without

sufficient cause. 16 As this Honorable Commission has consistently

ruled, (t)he authority (to transfer em ployees) under t he law is not

intended to harass or oppress a subordinate on the pretext of

advancing and promoting public interest 17 .

61. The Supreme Court has protected government employees

from political ven detta. In Pangilinan vs. Maglaya, 18 the Acting

Executive Director of the Land Transportation Office was sep arated

from service the day after his public exposes on the anomalies

16 hi"i!!ine American ife an enera" (ns#rance -o' *s' rama e) 'R' ,o' 156963) ,o*em%er11) 2004'17 -i*i" Ser*ice -ommission Reso"#tion ,o' 030669) #ne 10) 2003 citin& -S- Reso"#tion ,o'98 16 08) #ne 24) 1998'18

'R' ,o' 104216) A#st 20) 1993'

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involving his superiors and his threat t o le cases against them.

Although the Supreme Court admitted that it was constrained by

law to uphold the termination of a temporary employee, it did not

hesitate to express its disapproval of t he real political motives

behind dismissals and declare that the removal, in fact,

grave a buse of discretion:

It is not d ifficult to see that the petitioner w asreplaced because of his expos and his threat to bringcharges a gainst his superiors. His relief was clearlyan act of punishment if not personal vengeance .

This is not denied. The respondents, while invokingthe law to justify his sep aration, have made no effort

whatsoever to justify their motives.

x x x x x x x x x

It would be a sorry day, indeed, if a civilservant could be summarily removed from hisposition for the "sin" of complaining about theirregularities of his superiors. This would not onlyimpair the integrity of the civil service but alsoundermine the campaign to encourage the public,

including those in the civil service, to expose anddenounce venality in government .

Pangilinan's denunciation of the non-reectivelicense plates was n ot the act of a rabble-rouser or apublicity-seeker. The record shows that he quietly

brought the matter to the attention of his superiors,giving reasons for h is misgivings. They took no action.Feeling frustrated, he sought the attention of themedia and told them of his objection to the non-reective license plates. He cited the laws that heclaimed had been violated. He narrated his efforts toprevent their violation. He sp oke of the indifference ofhis s uperiors. In doing all these, he was ex ercising hisright as a citizen, and especially as a civil servant, todenounce official misconduct and improve the publicservice.

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x x x x x x x x x

Pangilinan was separated the dayimmediately following his press conference. TheCourt sees the action as a retaliation. The publicrespondents say they were merely terminating hisincumbency in accordance with existing law. TheCourt sees that termination as a punishment.

Under the expanded denition of judicialpower in Article VIII, Section 1, of theConstitution, the Court can declare the acts of the

public respondents as tainted with grave abuse ofdiscretion and therefore invalid . (Emphasissupplied)

62. In this ca se, Appellant faces a formidable opponent, and

powerless, he can only take refuge in the arm s of the law. Under a

Rule of Law not even the highest officer of the land should be

allowed to disregard the Constitution, the law and the rights of

civil servants. No amount of political power nor threat of

punishment sh ould be able to intimidate civil servants into loyal

submission, blind obedience, and conspiracy to commit unlawful

acts.

Prayer

WHEREFORE, in view of the foregoing, it is respectfully

prayed that the Order dated 4 October 2005 signed by the

Appellee, ordering Appellants transfer to the DOLE be nullied as

illegal and that Appellant be retained as Undersecretary for

Finance and Administration of the Department of Education.

The Appellant prays for other relief that are just and

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equitable in the p remises.

Quezon City, 14 October 2005.

Counsel for Appellant:

ROWENA V. GUANZON

PTR No. 01321430 1-17-04 Cadiz CityIBP Lifetime Member 1020636 8-20-04Bacolod CityRoll of Attorney No. 33534

DAMCELLE S. TORRES PTR NO. 9437561/1-05-2005/ Makati

IBP NO. 631983/1-05-2005 LagunaRoll of Attorney No. 49400

MAE NIA REYES

Suite 311 Centro PlazaScout Torillo corner Scout MadrinanSouth Triangle, Quezon City 1103

Copy furnished: Registered Mail No. ___Secretary Eduardo Ermita Date __________________Office of the Executive SecretaryMalacanang PalaceManila City

EXPLANATION ON MODE OF SERVICE

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For lack of personnel, a copy of foregoing Memorandum on Appeal was served by registered mail, rather than by the preferrd

mode of personal service.

DAMCELLE S. TORRES

Documents

Legal Memorandum 5