WBench1

MENDOZA, J., dissenting:

By its decision in this case today, the majority sanctions the making of “midnight appointments” by local executives on the simplistic reasoning that Art. VII, §15[1] of the Constitution applies only to Presidents and Acting Presidents. What the majority overlooks is that Art. VII, §15 is simply an application of a broader principle that after the appointing authority has lost the elections, his is the duty of a prudent caretaker of the office, and, therefore, he should not fill positions in the government unless required by the imperatives of public service. This rule binds all, including mayors, who are vested with the power of appointment, and it flows from the principle that a public office is a public trust.[2] In Aytona v. Castillo,[3] this Court did not need a specific constitutional or statutory provision to rule that the making of 350 appointments after the proclamation of a new President and during the last hours of the outgoing Chief Executive could not be upheld consistent with “good faith, morality, and propriety.”[4] So why should the majority in this case demand a specific rule before it puts its foot down on this pernicious practice of making “midnight” or last-hour appointments by local executives?

For such indeed are the 14 appointments made in this case to various positions in the municipal government of Pagbilao, Quezon. They were made by Mayor Ma. Evelyn S. Abeja after she had lost her bid for re-election. Despite the fact that the results of the election were proclaimed on May 11, 1995, she made several appointments within the space of 27 days, from June 1, 1995 to June 27, 1995, just three days before she bowed out of the service. Even when there was no urgent need to do so, she went ahead and filled the vacancies in the municipal government a few days before the new mayor, herein petitioner Conrado L. de Rama, took office on June 30, 1995.

The majority justifies the appointments on the ground that they were made with the advice of the Personnel Selection Board of the Municipality and attested by the Head of the Civil Service Field Office in Lucena City. As petitioner points out, however, the 14 appointments were considered in only two brief meetings of the board. Nine were passed upon by the Personnel Selection Board in its meeting of June 16, 1995 which lasted only an hour, from 4:30 to 5:30 P.M. These were the appointments of the following respondents:

Aristeo G. Catalla Gen. Services Officer

Elsa M. Marino Mun. Agriculturist

Graciela V. Glory Bookkeeper II

Ma. Petra Muffet Luce Accounting Clerk III

Felicidad T. Orinday Accounting Clerk II

Bernardita M. Mendoza Agricultural Technologist

Flordeliza S. Oriasel Clerk I

Jane Macatangay Day Care Worker I

Adolfo Glodoviza Utility Worker II

On June 27, 1995, the nine (9) respondents were issued their appointments by Mayor Abeja.

The appointments of four other respondents were considered by the Personnel Selection Board in its meeting of May 31, 1995, which lasted only an hour and ten minutes, from 3 P.M. to 4:10 P.M. These respondents are the following, with the dates of their appointments set opposite their names:

Eladio P. Martinez Registration Officer I June 1, 1995

Divino M. de Jesus Bookbinder III June 1, 1995

Morell M. Ayala Accounting Clerk III June 16, 1995

Daisy D. Porta Clerk IV June 27, 1995

In short, respondents’ appointments were made at two meetings of the Personnel Selection Board, held on May 31, 1995 and June 16, 1995, each meeting lasting no more than an hour. At both meetings of the board, Mayor Abeja presided as chairperson. There was just a perfunctory compliance with legal requirements. In the case of respondent Florencio S. Ramos, there is even no record that his appointment on June 27, 1995 as Utility Foreman was passed by the Personnel Selection Board.

Yet, neither the Civil Service Commission nor the Court of Appeals found anything wrong or irregular with the 14 appointments made by outgoing Mayor Abeja. The Civil Service Commission said:

Sections 9 and 10, Rule V, Omnibus Rules Implementing Book V of the Revised Administrative Code of 1987 provides as follows:

Section 9. An appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and shall remain in force and effect until disapproved by the Commission. However, an appointment may be void from the beginning due to fraud on the part of the appointee or because it was issued in violation of law.

Section 10. An appointment issued in accordance with pertinent laws or rules shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission. The appointment shall remain effective until disapproved by the Commission. In no case shall an appointment take effect earlier than the date of its issuance.

In the absence of any showing that these alleged midnight appointments were defective in form and in substance, nor is there evidence presented to show that subject appointments were issued in contravention of law or rules, these appointments are deemed valid and in effect.

The Honorable Mayor anchored his request for the recall of subject appointments on the fact that these appointments were issued in violation of Section 15, Article VII of the 1987 Constitution which provides as follows:

Section 15. Two months immediately before the next presidential elections and up to the end of his term, as President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. (Underscoring supplied)

Clearly, the constitutional provision cited by Mayor De Rama speaks of presidential elections. The instant case involves local elections and no analogy can be made that what is prohibited during the presidential elections is applicable also to local elections without any express provision of law. Hence, the appointing authority can validly issue appointments until his term has expired, as long as the appointee meets the qualification standards for the position.

This ruling of the Civil Service Commission is echoed at pages 11-12 of the majority opinion.

It is clear, however, that the Civil Service Commission did not find anything wrong or irregular in the appointments of respondents because it failed to appreciate the fact that “Midnight appointments” – whether made by the President or by a mayor – are bad, because they are made hurriedly, without due deliberation and careful consideration of the needs of the office and the qualifications of the appointees, and by an appointing authority on the eve of his departure from office. “Midnight appointments” are bad because, as the Aytona decision puts it, they offend principles of “fairness, justice and righteousness.”[5] They cannot be less bad because they are made at the local level, by mayors and other local executives. The fact that in this case the appointments were subsequently attested by the Civil Service Commission Field Office in Lucena City does not make them any less odious.

Public office – it cannot be too often repeated – is a public trust. As trustee of a public office, the duty of Mayor Ma. Evelyn S. Abeja, as outgoing executive, was to preserve the vacancies in the municipal government for her successor to fill or not to fill. What this Court said in Aytona v. Castillo applies with equal force to Mayor Abeja:

But it is common sense to believe that after the proclamation of the election of President Macapagal, [outgoing President Garcia] was no more than a “care-taker” administration. He was duty bound to prepare for the orderly transfer of authority to the incoming President, and he should not do acts which he ought to know, would embarrass or obstruct the policies of his successor. The time for debate had passed; the electorate had spoken. It was not for him to use his powers as incumbent President to continue the political warfare that had ended or to avail himself of presidential prerogatives to serve partisan purposes. The filing up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the apppointment and the appointee’s qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments.[6]

Of course an outgoing executive retains the power of appointment up to the last day he is in his office. As the above excerpt from Aytona says, however, the exercise of such power is circumscribed by the requirement that the appointments made must be “few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee’s qualifications.”[7] The hurried appointments of respondents detract from that degree of good faith, morality, and propriety required for appointments made by a faithful and prudent caretaker in order to be considered valid.

For these reasons, I vote to reverse the decision of the Court of Appeals and to declare the appointments of private respondents as null and void.