March 19, 2012
Notes from Senator Miriam Defensor Santiago's manifestation
How does the Supreme Court characterize failure to properly and completely file one's SALN?
CSC Memorandum Circular No. 19 or the Uniform Rules on Administrative Cases in the Civil Service provides that dishonesty is considered a grave offense where the penalty for the first offense is dismissal. However, the Memorandum did not define dishonesty. Dishonesty was defined by the Supreme Court in the case of Office of the Ombudsman v. Racho, 641 SCRA 148 (2011):
Dishonesty begins when an individual intentionally makes a false statement in any material fact, or practicing or attempting to practice any deception or fraud in order to secure his examination, registration, appointment or promotion. It is understood to imply the disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition to defraud, deceive or betray. It is a malevolent act that puts serious doubt upon one's ability to perform his duties with the integrity and uprightness demanded of a public officer or employee. (Emphasis supplied)
In Office of the Ombudsman v. Racho, 641 SCRA 148 (2011), the court found Racho guilty of dishonesty for non-disclosure of his bank deposits in SALN. Nonetheless, the court held that "in this case, Racho not only failed to disclose his bank accounts containing substantial deposits but he also failed to satisfactorily explain the accumulation of his wealth or even identify the sources of such accumulated wealth." The court stated that Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act, which requires the accomplishing and filing of a true, detailed and sworn SALN "should be understood...to curtail 'acquisition of unexplained wealth.' Where the source of the undisclosed wealth can be properly accounted, then it is 'explained wealth' which the law does not penalize."
In Concerned Taxpayer v. Doblada, 459 SCRA 356 (2005), a sheriff of the regional trial court was dismissed from the service for violating Section 7 of R.A. No. 3019 and Section 8 of R.A. No. 6713 for his failure to declare a true and detailed SALN for a certain number of years during his stay in government. The Court held that the "documents submitted by the complainant and those which were compiled by the investigating agent of the NBI, [were] not adequate to establish complainant's allegation that respondent had acquired assets which are manifestly out of proportion to his legitimate income." However, since there were properties and business interests acquired but which were not declared in his SALNs, the petitioner was held guilty of violating the laws abovementioned.
In Rabe v. Flores, 272 SCRA 415 (1997), respondent avers that she did not divulge any business interest in her Sworn Statement of Assets and Liabilities and Financial Disclosure for the years 1991-1994 because she "was never engaged in business during said period although I had a stall in the market."
We have repeatedly held that although every office in the government service is a public trust, no position exacts a greater demand for moral righteousness and uprightness from an individual than in the judiciary. Personnel in the judiciary should conduct themselves in such a manner as to be beyond reproach and suspicion, and free from any appearance of impropriety in their personal behavior, not only in the discharge of their official duties but also in their everyday life. They are strictly mandated to maintain good moral character at all times and to observe irreproachable behavior so as not to outrage public decency.
Aside from dishonesty, however, respondent is also guilty of failure to perform her legal obligation to disclose her business interests. Respondent herself admitted that she "had a stall in the market."
Section 8 of Republic Act No. 6713 provides that it is the "obligation" of an employee to submit a sworn statement, as the "public has a right to know" the employee's assets, liabilities, net worth and financial and business interests. Section 11 of the same law prescribes the criminal and administrative penalty for violation of any provision thereof. Paragraph (b) of Section 11 provides that "(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him."
In the present case, the failure of respondent to disclose her business interest which she herself admitted is inexcusable and is a clear violation of Republic Act No. 6713.
In Ombudsman v. Valeroso, 520 SCRA 140 (2007), the Supreme Court held that Section 8 of R.A. No. 3019 speaks of unlawful acquisition of wealth, the evil sought to be suppressed and avoided, and Section 7, which mandates full disclosure of wealth in the SALN, is a means of preventing said evil and is aimed particularly at curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. "Unexplained" matter normally results from "non-disclosure" or concealment of vital facts. SALN, which all public officials and employees are mandated to file, are the means to achieve the policy of accountability of all public officers and employees in the government. By the SALN, the public are able to monitor movement in the fortune of a public official; it is a valid check and balance mechanism to verify undisclosed property; it is a valid check and balance mechanism to verify undisclosed properties and wealth.
In Carabeo v. Court of Appeals, 607 SCRA 394 (2009), Carabeo, the Officer-in-Charge (OIC) of the Office of the Treasurer of Parañaque City accumulated several properties and was able to travel abroad 15 times. He did not disclose these in his SALN. He alleged as a defense that he can simply correct the entries made in his SALN pursuant to Section 10 or R.A. No. 6713, which provides:
Section 10. Review of Compliance Procedure. - (a) The designated Committees of both Houses of the Congress shall establish procedures for the review of statements to determine whether said statements which have been submitted on time, are complete, and are in proper form. In the event a determination is made that a statement is not so filed, the appropriate Committee shall so inform the reporting individual and direct him to take the necessary corrective action.
While Section 10 of R.A. No. 6713 indeed allows for corrective measures, Carabeo is charged not only with violation of R.A. No. 6713, but also with violation of the Revised Penal Code, R.A. No. 1379, and R.A. No. 3019, as amended, specifically Sections 7 and 8 thereof.
Significantly, Carabeo failed to show any requirement under RA 3019 that prior notice of the non-completion of the SALN and its correction precede the filing of charges for violation of its provisions. Neither are these measures needed for the charges of dishonesty and grave misconduct, which Carabeo presently faces.
However, in Presidential Anti-Graft Commission v. Pleyto, 646 SCRA 294 (2011), which involved the failure of a department undersecretary to declare in his SALN his wife's business interests and financial connections, the Supreme Court held that such failure was not dishonesty but only simple negligence.
[Pleyto's] SALNs are prepared by a family bookkeeper/accountant. Also, his wife has been running their financial affairs, including property acquisitions which form part and parcel of her lending business. Thus, as he was not directly involved in the various transactions relating to the lending business, petitioner failed to keep track of the real property acquisitions by reason thereof.
Consequently, petitioner's SALN was not filed in proper form, containing several inaccurate information, such as discrepancies in the year and mode of acquisition of the declared properties, and imprecise descriptions of the said properties since some of the properties were not broken down to their individual titles and, instead, treated as one entry since they are contiguous to one another and to fit all the information in the limited number of spaces provided in the printed SALN form. And these inaccuracies are repeated year after year, since the common practice is copying the entries in the immediately preceding year and just adding any subsequent acquisitions.
In this case, the court made a distinction between gross misconduct, dishonesty, and negligence:
Petitioner is charged with gross misconduct and dishonesty for failing to comply with Section 7 of the Anti-Graft and Corrupt Practices Act, and Section 8 of the Code of Conduct and Ethical Standards for Public Officials and Employees, requiring the submission of a statement of assets and liabilities by a public officer or employee.
As for gross misconduct, the adjective is "gross" or serious, important, weighty, momentous, and not trifling; while the noun is "misconduct," defined as a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer. The word "misconduct" implies a wrongful intention and not a mere error of judgment. For gross misconduct to exist, there must be reliable evidence showing that the acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known legal rules.
And as for dishonesty, it is committed by intentionally making a false statement in any material fact, or practicing or attempting to practice any deception or fraud in securing his examination, registration, appointment or promotion. Dishonesty is understood to imply a disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity.
Negligence is the omission of the diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. In the case of public officials, there is negligence when there is a breach of duty or failure to perform the obligation, and there is gross negligence when a breach of duty is flagrant and palpable.
Gross misconduct and dishonesty are serious charges which warrant the removal or dismissal from service of the erring public officer or employee, together with the accessory penalties, such as cancellation of eligibility, forfeiture of retirement benefits, and perpetual disqualification from reemployment in government service. Hence, a finding that a public officer or employee is administratively liable for such charges must be supported by substantial evidence.
The Court held that Pleyto's failure in properly and completely filling out his SALN was not intentional:
Clear from the foregoing legal definitions of gross misconduct and dishonesty is that intention is an important element in both. Petitioner's candid admission of his shortcomings in properly and completely filling out his SALN, his endeavor to clarify the entries therein and provide all other necessary information, and his submission of supporting documents as to the acquisition of the real properties in his and his wife's names, negate any intention on his part to conceal his properties. Furthermore, in view of this Court's findings that these properties were lawfully acquired, there is simply no justification for petitioner to hide them. Missing the essential element of intent to commit a wrong, this Court cannot declare petitioner guilty of gross misconduct and dishonesty.
An act done in good faith, which constitutes only an error of judgment and for no ulterior motives and/or purposes, does not qualify as gross misconduct, and is merely simple negligence. Thus, at most, petitioner is guilty of negligence for having failed to ascertain that his SALN was accomplished properly, accurately, and in more detail.
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