OMBUDSMAN REGIONAL OFFICE (VISAYAS)
HON. NOEL O. JAVIER,
- versus - OMB –
For: Malversation of Public Funds
in Relation to Section 3,
Paragraph (g) of R.A. 3019
otherwise known as the Anti-
Graft and Corrupt Practices Act
HON. REX T. GUBATINA,
LGU – Madalag, Aklan
ABE R. PASTRANA,
Owner – Proprietor/Contractor
(Pastrana Construction and Supplies)
C O M P L A I N T
COMES NOW the Complainant and unto the Honorable Deputy Ombudsman for the Visayas respectfully file this complaint for Malversation of Public Funds in relation to Section 3, Paragraph (g) of R.A. 3019, otherwise known as the Anti-Graft and Corrupt Practice Act against HON.REX T. GUBATINA,
Municipal Mayor, LGU of Madalag, Aklan, and ABE R. PASTRANA, Owner – Proprietor/Contractor of Pastrana Construction and Supplies, committed as follows:
That a Potable Water System Project has been allotted and properly bidded for Barangay Dit-ana, Madalag, Aklan sometime in Calendar Year 2006;
That said project was a National Government funded project thru the Department of Public Works and Highways (DPWH) to be implemented by the Local Government Unit of Madalag, which took charge of the bidding process;
That said project was supposed to be implemented by the Municipal Government of Madalag thru its Municipal Mayor, Rex T. Gubatina;
That a cash advance had been made and liquidated in the amount of P 391, 100.00 as certified to by the Municipal Treasurer, Amy N. de Chino, Status of Cash Receipts and Expenditures on Various Potable Water System of 20 Barangays For the Period from December 21, 2006 to March 30, 2009, copy of which shows the aforementioned amount which is hereto attached and marked as “Annex A”;
That “Annex B” would show that there was release of funds on April 17, 2007 in the amount of P 391, 100.00, the payee of which was Pastrana Construction and Supplies, the winning bidder, under reference number 300-07-04-21;
That more than two (2) years have passed after the release of said funds on April 17, 2007 yet no project has ever been implemented despite payment as shown in the aforementioned documents therefore casting doubt that the said amount may have been utilized for purposes other than that which is intended;
In effect, public funds were paid for a bidded project which has not been implemented. It is however, unfortunate that this anomalous situation was allowed by the responsible and accountable public officer;
In effect, malversation was committed by the abovenamed respondent when he consented willfully to the taking of public funds causing prejudice to the public funds of the National Government;
Section 60 of the Local Government Code provides that:
“Grounds for Disciplinary Actions – An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
In effect, malversation of public funds constitutes misconduct in office.
In effect, public funds were paid for materials and services not rendered. It is, however, unfortunate that this anomalous situation was allowed by the responsible and accountable public officer.
In effect, malversation was committed by the above named respondents when they consented willfully to the taking of public funds causing prejudice to the public funds of the Local Government Unit of Madalag.
Article 217 of the Revised Penal Code states:
“Malversation of public funds or property – Presumption of malversation – Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate, or shall consent, through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property shall suffer:”
The elements of malversation are as follows:
(a) The offender is a public officer;
(b) He has custody or control of funds or property by reason of the duties of his office;
(c) The funds or property involved are public funds of property for which he is accountable; and
(d) He has appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence, permitted the taking by another person of such funds or property. (Saligumba, et al., vs. Sandiganbayan, G.R. Nos. 154239-41, February 16, 2005).
There are two forms of malversation: (1) the public officer has converted public funds or property to his own personal use; and (2) other persons were able to take such public funds or property because of the public officer’s (i) consent, (ii) abandonment, or (iii) negligence. The felony may thus be committed by dolo or culpa. The appropriate penalty is imposed regardless of whether the mode of commission is with intent or due to negligence.
An accountable officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in the officer’s account which he has not been able to explain satisfactorily. All that is essential is proof that the accountable officer has received public funds but that when demand therefore is made, he is unable to satisfactorily account for the same.
As held in Labatagos vs. Sandiganbayan (183 SCRA 415_), malversation consists not only misappropriation or converting of public funds or property to one’s personal use but also by knowingly allowing others to make use of or misappropriate the same.
In relation to the above mentioned provision of law, Section 3, paragraph (g) of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practice Act states:
“Section 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
(g) Entering, on behalf of the Government, into any contractor transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.
The offense prohibited by Section 3 (g) of R.A. No. 3019 is the act of the public officer of entering, for or in behalf of the government, into a contract or transaction which is grossly and manifestly disadvantageous to the government. A violation of Section 3 (g) has the following elements:
1. The offender is a public officer;
2. He entered into a contract or transaction in behalf of the government; and
3. The contract or transaction is manifestly and grossly disadvantageous to the government.
The offense defined and punished under Section 3 (g) of R.A. No. 3019 partakes of the nature of a malum prohibitum. It is the commission of that act as defined by law, not the character or effect thereof, that determines whether or not the provision has been violated.
In this case, not only public funds were allowed to be lost due to the consent of the respondent Municipal Mayor but to an extent the contract entered into by the said respondent public officer was grossly disadvantageous to the government.
On the other hand, there was no effort on the part of the contractor Pastrana Construction and Supplies to comply with or at the very least call the attention of the LGU of Madalag to the fact they were paid for materials not rendered in line with the program of work of the project for which they were intended.
Hence, the contractor is made a respondent in this case because the evidence shows that the supplier/contractor acted as co-principal and willing participant along with the respondent public officer in defrauding the government. This is in line with the policy enunciated in R.A. No. 3019 that the government aims “to repress certain acts of public officers and private persons alike which constitute graft and corrupt practices or which may lead thereto (Section 1, R.A. No. 3019)”.
In relation to this, complainant is praying that the above named respondent – public officer be preventively suspended from holding office pursuant to the applicable provisions of law considering that the evidence of guilt is strong.
In relation to the existence of clear and convincing evidence of the commission of the offense being complained of, herein complainant prays that the aforementioned accountable respondent – public officer be preventively suspended by the Honorable Ombudsman in accordance with law in order to prevent said respondent from using their office to exert undue influence on others by reason of this case. Further, these charges involve dishonesty and the continued stay in office of the respondents may cause further prejudice to the government.
In relation to this, Section 13 of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act is applicable.
Section 13, R.A. No. 3019 states:
“SECTION 13. Suspension and loss of benefits – Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as complex offense and in (whatever) stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.
In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government. (As amended by Batas Pambansa Blg. 195, March 16, 1982)”
The authority of the Sandiganbayan or the proper court to order the preventive suspension of an incumbent public officer who is facing criminal prosecution for violating (i) RA 3019, (ii) the crimes defined in Title 7, Book II of the RPC, or (iii) any offense involving fraud upon the government or public funds or property, is granted by Section 13 of RA 3019 above.
Preventive suspension intends, (1) to preserve the integrity of the prosecution of the accused public officer, by preventing him from intimidating or influencing witnesses or tampering with documentary evidence, and (2) to avoid further acts of malfeasance while in office. The provision on suspension pendente lite applies equally to all public officers indicted under a valid information under RA 3019 or under Title 7, Book II of the revised Penal Code or for any offense involving fraud upon the government or involving public funds or property.
Section 13 of RA 3019, as amended, unequivocally provides that the accused public official “shall be suspended from office” while the criminal prosecution is pending in court. The rule on the matter is specific and categorical, leaving no room for interpretation. There are no ifs and buts about it. The court has neither the discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate or continue committing malfeasance in office.
WHEREFORE, in view of the foregoing premises, it is most respectfully prayed of the Honorable Deputy Ombudsman of the Visayas to conduct an investigation on the basis of the factual and material allegations in this complaint and to institute a case against erring public official and the contractor – respondent complained of in this case as the facts and evidence warrants and to order the preventive suspension of said respondent pending investigation as provided for under the law and to grant such other reliefs and remedies just and equitable in the premises.
Madalag, Aklan for the City of
May 28, 2009
NOEL O. JAVIER
- Affidavit of the Complainant
- Affidavit of witnesses
- Annexes “A” and “B” – Supporting documents and evidences
The Department of the Interior and Local Government
Aklan Provincial Office
Capitol Site, Kalibo, Aklan
The Civil Service Commission
Aklan Provincial Office
Capitol Site, Kalibo, Aklan
The Commission on Audit
Aklan Provincial Office
SUBSRIBED AND SWORN to before me this _________ day of May 2009 at Kalibo, Aklan. Affiant exhibiting to me his CTC No. ________________ issued on ________________________ at __________________________.
I hereby certify that I personally examined the aforesaid affiant and I am satisfied that he voluntarily executed the foregoing statement and that same is true and correct to his knowledge and belief.
REPUBLIC OF THE
I, NOEL O. JAVIER, of legal age, Filipino, married, Punong Barangay of Barangay Dit-ana, Municipality of Madalag, Aklan, after having been duly sworn to in accordance with law, do hereby depose and say the following:
That I am the complainant in this case filed before the Office of the Ombudsman Visayas;
That I prepared the foregoing Complaint and that the allegations therein are true and correct of my own personal knowledge and based on authentic records.
That I have not commenced any other action involving the same issues in the Supreme Court, Court of Appeals or any other tribunal, agency, or quasi judicial agency and to the best of my knowledge no such other action or proceedings is pending before the Supreme Court, Court of Appeals or any other tribunal, agency or quasi-judicial agency involving the same issues and that if I should thereafter learn that a similar action or proceedings is pending before the said courts, tribunal, agency or quasi-judicial agency, I undertake such facts within five (5) days therefrom to the Court or agency wherein the original pleading and sworn certification have been filed.
IN WITNESS WHEREOF, I have hereunto affix by signature this ________________ day of _________________________, 2009 at Kalibo,
NOEL O. JAVIER
Issued on _______________, 2009
Issued at ____________________
Subscribed and sworn to before me this _________ day of __________________, 2009 at Kalibo, Aklan