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FIRST DIVISION

[ A.C. No. 3921, June 11, 2018 ]

DELFINA HERNANDEZ SANTIAGO, COMPLAINANT, V. ATTY. ZOSIMO SANTIAGO AND ATTY. NICOMEDES TOLENTINO, RESPONDENTS.

R E S O L U T I O N

LEONARDO-DE CASTRO,[*] J.:

We resolve the administrative case for disbarment[1] filed by complainant Judge Delfina Hernandez Santiago against respondents Atty. Zosimo Santiago and Atty. Nicomedes Tolentino, charging them with deceit, gross misconduct and violating their oaths as members of the Bar.

During the time when the material events transpired in this case, complainant was the City Personnel Officer of Caloocan City while respondents Santiago and Tolentino respectively held the positions of City Legal Officer and Legal Officer II in the City Government of Caloocan.

In 1988, complainant applied for, and was granted, a sick leave of absence with commuted pay covering 240 days from January 25 to December 31, 1988.[2] Sometime in February 1988, complainant received a Memorandum[3] from then Mayor Macario A. Asistio, Jr., which cancelled all leaves of absence of city officials and employees. She also received a memorandum,[4] detailing her to the Office of the Secretary to the Mayor. Complainant apparently paid no heed to said memoranda. She was later directed to return to work in a letter[5] dated April 21, 1988 signed by respondent Tolentino, which pertinently state:

On February 5, 1988 you were served with a [Memorandum] from the Office of the Mayor that all [leaves] of absence of city officials and employees were cancelled in the interest of public service. [In spite] of the aforesaid memo you did not return to work thereby, ignoring the memo of the Hon. Mayor Macario A. Asistio, Jr.

In this [regard], we are giving you another five (5) days from receipt hereof to report for work, otherwise, the undersigned may be constrained to take drastic action against you.

Complainant replied with a handwritten note,[6] asking for ten days within which to answer and/or act on the letter. She, however, did not return to work. At the end of her leave, she tendered her resignation.[7] She subsequently received a memorandum[8] dated May 18, 1989 from Mayor Asistio terminating her employment. Enclosed therewith was a Resolution[9] dated December 19, 1988 signed by respondents Santiago and Tolentino, which recommended her dismissal from service.

Complainant then filed the present case, accusing the respondents of making deceitful statements in said Resolution, committing gross misconduct and violating their Attorney's Oath for recommending her dismissal without just cause or due process. Quoted hereunder is the aforesaid resolution with emphasis on the allegedly false statements:

RESOLUTION

This is a case involving Atty. Delfina H. Santiago, Asst. City Administrator, indorsed to this office by the Hon. Mayor, Macario A. Asistio, Jr. for appropriate action.

The facts of the case are as follows:

1. In 1972, Atty. Delfina H. Santiago was, per court decision, dismissed illegally as Asst. City Administrator on Personal Matters.

2. In 1976, Atty. Santiago, was appointed Chief, Administrative Office, a position of lower rank.

3.In 1983, Atty. Santiago was charged administratively for UNAUTHORIZED ABSENCES, in violation of Civil Service laws. Upon recommendation of the Office of the City Legal Office, Atty. Santiago was validly and lawfully ordered to be dropped from the rolls which was subsequently approved and affirmed by the Civil Service Commission in the latter's order dated October 1983 x x x.

x x x x

4. In 1985, the Supreme Court, in affirming an RTC decision, ordered the reinstatement of Santiago as Asst. City Administrator on Personal Matters and declaring the 1972 dismissal as illegal.

5. In 1986, Atty. Santiago was appointed by Mayor Martinez as Asst. City Administrator, her former position, pursuant to the Supreme Court decision.

6. In January 1988 Atty. Santiago filed a leave of absence (Sick Leave & Vacation Leave) on advice of her Doctor, a Med. Cert. was attached thereto and the duration of the leave was 240 days starting January 25 up to December 31, 1988.

The said leave of absence was initially approved but later disapproved by the Hon. Macario A. Asistio, Jr. when the latter issued a Memorandum dated February 5, 1988 cancelling all leave of absence of which Memo Atty. Santiago was duly served with. However despite service of the said Memo to Atty. Delfina H. Santiago she failed and refused to report for work [continuously] up to the present. There was not even a semblance of showing that she would comply with the memorandum.

At this juncture the office of the City Mayor indorsed this case against Atty. Delfina H. Santiago for appropriate action. This office conducted an investigation and summoned Atty. Delfina H. Santiago for several times to appear before the undersigned; present her evidence and explain her side in consonance with the due process mandated by the constitution. Despite several notice sent to Delfina Santiago the latter did not heed the said notices, thereby, leaving the undersigned without any alternative but to decide the case on the basis of the evidence available and the records pertaining to Atty. Delfina Santiago.

FINDINGS

The records disclosed that the memorandum dated February 5, 1988 issued by the Hon. City Mayor, Macario A. Asistio, Jr. to all employees of the City Government cancelled all leave of absences in the interest of service effective 5 February 1988. There is no doubt a so that Atty. Santiago was duly served with the said memo as appearing on the said memo is her signature, an evidence of receipt thereof. Having received the said memo Atty. Santiago was fully aware of the cancellation of her leave of absence and therefore as a prudent employee she should have obeyed the memorandum of the City Mayor by way of reporting for work as called for. What happened instead was that Atty. Santiago never showed-up, thereby, neglecting her duty as Asst. City Administrator and committed, in effect, insubordination.

What is nagging and aggravates the predicament of Atty. Santiago is that the instant case is already her second violation which places her in the category of incorrigible employees. The first is when she was charged of UNAUTHORIZED ABSENCES, punished for said act and made to suffer the corresponding penalty thereof.

Under the Civil Service Law, Art. 9, Section 36 Par. 3, "No office or employee in the Civil Service shall be suspended except for the cause as provided by law and after due process".

The following shall be grounds for disciplinary action:

x x x x 3. Neglect of Duty x x x

27. Insubordination

The actuations of the respondent Atty. Santiago squarely falls on the aforequoted grounds for dismissal as her failure to report for work amounts to [willful] disobedience to her superior officer. Nothing can be more important to the upholding and maintenance of the public service in its integrity and good name than the enforcement of the reasonable discipline of laws. In the discharge of an official duty and obligation Atty. Santiago as a government employee is expected to obey the order and instruction of the duly constituted authorities and she should not ignore or disregard a legitimate official order. Her act is inimical to the public service. To tolerate Santiago to get away with it would be tantamount to allowing her to act as she suits and satisfies her personal convenience in violation of her superior's order. An act which would be certainly demoralizing to the public service. As may be gleaned from the foregoing discussions Atty. Santiago had [willfully] ignored her superior's order without any attempt to comply with it and therefore insubordination is clearly present aside from neglect of duty.

RECOMMENDATION

WHEREFORE, the instant case being the second [infraction] of the Civil Service law by Atty. Santiago, it is respectfully. recommended that the latter be dismissed from service.[10] (Emphases and underscoring supplied.)

Complainant contended that she was not administratively charged for any offense in 1983 or in 1988. Thus, she was not an incorrigible employee. Instead of being sent a notice or summons, she received respondent Tolentino's letter dated April 21, 1988, but the same neither stated that an administrative case had been filed against her nor did it require her to appear in any investigation. Since she was on a sick leave of absence, not a vacation leave, she could not be guilty of neglect of duty as she had no duties to perform. She was also not in a position to defy any lawful order, which would have amounted to insubordination. Annexed to the complaint were copies of: (a) the Resolution December 19, 1988; (b) Mayor Asistio's dismissal order dated May 18, 1989; (c) complainant's resignation letter; (d) her approved sick leave of absence application; and (e) the commutation voucher showing the payment of her salaries.

In respondent Santiago's comment[11] to the complaint, he argued that the allegedly deceitful statements in the above Resolution were not malicious imputations of falsehoods. If the statements were inaccurate, the same may have been caused by a misappreciation of facts or evidence. As to whether complainant was formally charged for unauthorized absences in 1983, the material point considered was that she was dismissed because of unauthorized absences. It also did not matter that she filed a sick leave of absence, not a. vacation and sick leave, as the issue of the investigation was whether she was liable for disobeying Mayor Asistio's directives.

Respondent Santiago further alleged that Mayor Asistio indorsed[12] to the City Legal Office the matter of complainant's noncompliance with the Mayor's return to work order and this referral was equivalent to an administrative complaint. Complainant was sent a notice regarding her failure to report for work, thereby informing her that she could be subjected to disciplinary action. Her failure to answer indicated her intent to disregard Mayor Asistio's order and her option not to participate in the investigation. Respondents' investigation proceeded ex parte and the assailed Resolution was issued on the basis of the evaluation of the evidence at hand. Without proof of bad faith or adverse personal motives, respondents cannot be held administratively liable for issuing the Resolution in the discharge of their official duties even if the same turned out to be erroneous.

In respondent Tolentino's comment,[13] he likewise argued that Mayor Asistio's referral of the case to the City Legal Office was treated as a complaint. Complainant was apprised of the nature thereof and she even requested ten days within which to answer the same. After the City Legal Office conducted an investigation wherein complainant failed to participate, respondents decided the case on the basis of records and evidence available. Anent the charge that she was not administratively charged in 1983, what was considered was that she did incur unauthorized absences that led to her dropping from the rolls. That she filed a sick leave of absence, not sick leave and vacation leave, was immaterial as Mayor Asistio's memorandum did not qualify the nature of the leaves of absence being cancelled.

Among the documents attached to respondent Tolentino's comment were copies of: (a) Mayor Asistio's letter [14] to complainant dated August 4, 1982 about her sick leave of absence; (b) Mayor Asistio's letter[15] to complainant dated July 5, 1983 about her unauthorized absences; (c) letter[16] dated August 4, 1982 of Administrative Officer Soriano to Mayor Asistio, seeking advice on the action to be taken on complainant's situation; (d) Mayor Asistio's indorsement[17] dated October 5, 1983 to the City Legal Office of complainant's case; (e) the indorsement[18] from the City Legal Office dated October 6, 1983, recommending that complainant be dropped from the roll of employees; (f) the order[19] of Mayor Asistio dated October 19, 1983 regarding complainant's separation from service; and (g) the Orders[20] dated October 27, 1983 and November 3, 1983 from the office of the Regional Director of the Civil Service Commission (CSC)-National Capital Region (NCR), approving the complainant's dismissal.

Complainant insisted in her Consolidated Reply[21] that the indorsement of Mayor Asistio was not at all signed by the Mayor and it was merely an indorsement of documents for study and recommendation. She was also not informed of said document. She asked for a period of ten days within which to answer and/or act on respondent Tolentino's letter dated April 21, 1988 and she did report to Atty. Enrique Cube, the Mayor's secretary to explain why she cannot go back to work yet. As no administrative case was filed against her in 1988, there could not have been a valid investigation under Presidential Decree No. 807.[22] Yet, respondents made up fictitious statements of facts and conclusions of law in recommending her dismissal.

The Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation.[23]

The IBP Report and Recommendation

IBP Investigating Commissioner Mario V. Andres issued a Report and Recommendation[24] dated April 4, 2008, which recommended the dismissal of the complaint for lack of merit. Commissioner Andres found that complainant failed to present convincing evidence that respondents acted in bad faith in rendering the Resolution dated December 19, 1988. Thus, they were held to be entitled to the legal presumption of innocence.

According to Commissioner Andres, respondents concluded that complainant was previously charged for unauthorized absences by relying on existing records that showed that she was dropped from the rolls in 1983. Complainant's letter asking for a period of ten days to reply to respondents' April 21, 1988 letter also meant that she understood that an investigation was underway. When she failed to respond, respondents assumed that she waived her right to present evidence. Respondents may have only been careless in their choice of words when they wrongly assumed that complainant was administratively charged in 1983 and they used the term summons in referring to the letter dated April 21, 1988. Still, respondents cannot be held liable for deceit without proof that they deliberately worded their Resolution to mislead Mayor Asistio into dismissing complainant.

Respondents were also not found guilty of misconduct as their actions neither indicated moral depravity, nor did it affect their qualifications as lawyers. Respondents may have erred in failing to follow the procedure under Section 38[25] of Presidential Decree No. 807 and they may be investigated for such lapses as government officials before some other venue. However, absent evidence showing respondents' moral depravity in issuing the said Resolution, they cannot be penalized therefor as members of the Bar.

Lastly, Commissioner Andres ruled that respondents did not violate their oath as members of the Bar, particularly the oath to "do no falsehood, nor consent to the doing of any in court."[26] The falsehood contemplated in the Attorney's Oath is one that is intentional or committed with malice. Although the allegedly deceitful statements in respondents' Resolution may not be wholly accurate, the same were found to be based on documents and made in the discharge of respondents' official functions as City Legal Officers.

In Resolution No. XVIII-2008-225[27] passed on May 22, 2008, the IBP Board of Governors approved Commissioner Andres's recommendation.

Complainant filed a Motion for Reconsideration with Motion to Vacate Resolution of the IBP,[28] which the Office of the Bar Confidant (OBC) of the Supreme Court referred to the IBP for appropriate action.[29]

In an Order[30] dated September 30, 2008, the IBP required the respondents to comment on the above motion. Only respondent Tolentino commented[31] thereon, praying that it be denied for being a mere rehash of complainant's previous pleadings and issues that had already been passed upon.

Complainant filed before this Court an Ex Parte Motion to Vacate IBP Order dated September 30, 2008/to Declare this Case Submitted for Decision,[32] arguing that the Court's referral of her complaint to the IBP did not include the latter's authority to decide it. She averred that the IBP was also not in a position to take cognizance of her motion for reconsideration since the pleading was not addressed to the latter. Moreover, since respondents failed to present their case before the IBP, they were allegedly precluded from presenting any evidence in their behalf and any comment to complainant's motion for reconsideration will not serve any purpose.

In a Resolution[33] dated March 11, 2009, the Court referred to the IBP complainant's Motion for Reconsideration with Motion to Vacate Resolution of the IBP and her Ex Parte Motion to Vacate IBP Order dated September 30, 2008/to Declare this Case Submitted for Decision.

In Resolution No. XIX-2011-413[34] passed on June 26, 2011, the IBP Board of Governors denied complainant's motion for reconsideration as it found no cogent reason to reverse its previous ruling.

The IBP then transmitted the record of the case to the Court for final action.

Undaunted, complainant filed with this Court a Motion to Disregard IBP Resolution No. XIX-2011-413 dated June 26, 2011,[35] arguing that the IBP had no jurisdiction to dismiss her complaint or to rule on her motion for reconsideration. She insisted that the Resolution Nos. XVIII-2008-225 and XIX-2011-413 of the IBP Board of Governors should have only been recommendatory in nature and the IBP should not have arrogated unto itself the power of the Court to decide on her complaint.

The Ruling of the Court

The Court finds no merit in the complaint.

At the outset, we reject complainant's contention that the IBP infringed on this Court's jurisdiction in dismissing her complaint and denying her motion for reconsideration thereon.

The case was initiated upon the filing of the complaint for disbarment with this Court and the same was subsequently referred to the IBP for investigation, report, and recommendation in accordance with Section 1, Rule 139-B[36] of the Rules of Court. The Resolution Nos. XVIII-2008-225 and XIX-2011-413 of the IBP Board of Governors embody their recommendation to this Court. As succinctly stated in Cojuangco, Jr. v. Palma[37] :

Clearly, the resolution of the IBP Board of Governors is merely recommendatory. The "power to recommend" includes the power to give "advice, exhortation or indorsement, which is essentially persuasive in character, not binding upon the party to whom it is made." Necessarily, the "final action" on the resolution of the IBP Board of Governors still lies with this Court. x x x (Citation omitted.)

Verily, there is nothing in the IBP resolutions that would suggest that the same already constituted the final determination of the case and were beyond the power of the Court to review.

After thoroughly reviewing the record of this case, the Court affirms the recommendation of Commissioner Andres and the IBP Board of Governors that the instant complaint should be dismissed.

Section 27, Rule 138 of the Rules of Court provides for the grounds for the imposition of the penalty of disbarment, to wit:

SEC. 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor. — A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a wilful disobedience of any lawful order of a superior court, or for corruptly or wilfully appearing as an attorney for a party to a case without authority so to do. x x x

In this case, complainant accused the respondents of deceit, gross misconduct and of violating their Attorney's Oath in issuing the Resolution dated December 19, 1988 that allegedly contained false statements and which was arrived at without her being informed of the charges or given the opportunity to present evidence.

As Commissioner Andres correctly ruled, deceit covers intentional falsehoods or false statements and representations that are made with malice or with the intent to do wrong. Gross misconduct, on the other hand, is "any inexcusable, shameful or flagrant unlawful conduct on the part of a person concerned with the administration of justice; i.e., conduct prejudicial to the rights of the parties or to the right determination of the cause. The motive behind this conduct is generally a premeditated, obstinate or intentional purpose."[38] Similarly, on the charge of the alleged violation of the Attorney's Oath, the settled rule is that:

The Code of Professional Responsibility does not cease to apply to a lawyer simply because he has joined the government service. In fact, by the express provision of Canon 6 thereof, the rules governing the conduct of lawyers '"shall apply to lawyers in government service in the discharge of their official tasks." Thus, where a lawyer's misconduct as a government official is of such nature as to affect his qualification as a lawyer or to show moral delinquency, then he may be disciplined as a member of the bar on such grounds. Although the general rule is that a lawyer who holds a government office may not be disciplined as a member of the bar for infractions he committed as a government official, he may, however, be disciplined as a lawyer if his misconduct constitutes a violation of his oath [as] a member of the legal profession.[39] (Citations omitted; emphasis supplied.)

Before the Court may impose against respondents the severe disciplinary sanction of disbarment, complainant must be able to establish by substantial evidence the malicious and intentional character of the misconduct complained of that evince the moral delinquency of respondents. Substantial evidence is the amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.[40]

Except for complainant's allegations, however, she failed to present sufficient evidence to substantiate her complaint. The Court agrees with the findings of Commissioner Andres that complainant has not proffered any evidence that tended to show that respondents intentionally and deliberately made false statements in the Resolution dated December 19, 1988 in order to deceive and induce Mayor Asistio to dismiss complainant from service. She neither offered any documentary evidence to buttress her arguments nor presented any witness to corroborate her claims.

Quite the contrary, complainant herself revealed her lack of certainty as to the malicious intent or other ill motives of respondents when she made the following statements on her Motion for Reconsideration with Motion to Vacate Resolution of the IBP before the Court:

[Respondents] knew that there was never a first nor a second administrative case against her. Yet they twisted their facts and language to suit their purpose. Whether they misled the Hon. Mayor Asistio to dismiss her from the service, or they conspired to engineer her removal from the service, or followed a directive from Mayor Asistio to justify her dismissal, she does not specifically know. But certainly, their Resolution is not an honest mistake of judgment, as shown by the malicious warp and woof of the Resolution itself.[41] (Emphasis supplied.)

We find such line of argumentation distinctly wanting. Complainant cannot simply rely on speculations and suspicions, no matter how deep-seated, without evidence to support the same. We held in Osop v. Fontanilla[42] that charges meriting disciplinary action against a lawyer generally involve the motives that induced him to commit the act charged and that, to justifY disbarment or suspension, the case against the lawyer must be clear and free from doubt, not only as to the act charged but as to his motive. Furthermore, in Cabas v. Sususco,[43] we ruled that "mere allegation is not evidence and is not equivalent to proof. Charges based on mere suspicion and speculation likewise cannot be given credence."

As a final point, the Court deliberately dispensed with any discussion regarding the validity of the Resolution dated December 19, 1988. Commissioner Andres aptly pointed out that complainant may file in the proper tribunal a separate case against respondents, as City Legal Officers, for possible lapses in the procedure undertaken by them in the administrative investigation of the charge against her and/or the propriety of her dismissal. On this matter, complainant admitted in her complaint and consolidated reply that she had indeed filed administrative cases against respondents before the CSC, as well as a separate administrative case against Mayor Asistio, in order to impugn the validity of her dismissal from service. However, the specific details, stages and/or outcome of said cases were not properly manifested before this Court. Complainant merely stated that she was not satisfied with these other proceedings so she opted to file the instant case for disbarment.[44]

The Court cannot allow this to be done.

What is at once clear is that this case for disbarment cannot be resorted to as another remedy in order to attack the legality of said Resolution or to nullify its consequences. The only issue that should be determined in this case is whether respondents committed misconduct that put into question their moral character and moral fitness to continue in the practice of law. As previously discussed, this issue had been answered in the negative.

Considering that complainant failed to discharge the burden of proof to warrant the imposition of administrative penalty against respondents Santiago and Tolentino, we dismiss the complaint.

WHEREFORE, the complaint for disbarment against respondents Atty. Zosimo Santiago and Atty. Nicomedes Tolentino is hereby DISMISSED for lack of merit.

SO ORDERED.

Del Castillo, Jardeleza, and Gesmundo,[**] JJ., conur.
Tijam, J., on official leave.


[*] Acting Chairperson, Per Special Order No. 2559 dated May 11, 2018.

[**] Per Special Order No. 2560 dated May 11, 2018.

[1] Rollo, pp. 1-10.

[2] Id. at 18-19.

[3] Id. at 56.

[4] Id. at 55.

[5] Id. at 58.

[6] Id. at 59.

[7] Id. at 16-17.

[8] Id. at 15.

[9] Id. at 11-14.

[10] Id. at 11-14.

[11] Id. at 72-91.

[12] Id. at 94.

[13] Id. at 27-42.

[14] Id. at 43.

[15] Id. at 44.

[16] Id. at 45-47.

[17] Id. at 48.

[18] Id. at 49-51.

[19] Id. at 52.

[20] Id. at 53-54.

[21] Id. at 109-119.

[22] The Civil Service Decree of the Philippines.

[23] Rollo, p. 122.

[24] Id. at 267-277.

[25] Section 38 of Presidential Decree No. 807 is entitled Procedure in Administrative Cases Against Non-Presidential Appointees.

[26] RULES OF COURT, Appendix of Forms, Form 28, Attorney's Oath.

[27] Rollo, p. 266.

[28] Id. at 278-304.

[29] Id. at 378.

[30] Id. at 419.

[31] Id. at 426-428.

[32] Id. at 319-322.

[33] Id. at 375-376.

[34] Id. at 438.

[35] Id. at 451-455.

[36] Prior to its amendment, Section 1, Rule 139-B, which took effect on June 1, 1988, states in part:

SEC. 1. How Instituted. — Proceedings for disbarment, suspension, or discipline of attorneys may be taken by the Supreme Court motu propio, or by the Integrated Bar of the Philippines (IBP) upon the verified complaint of any person. The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits of persons having personal knowledge of the facts therein alleged and/or by such documents as may substantiate said facts.

The IBP Board of Governors may, motu propio or upon referral by the Supreme Court or by a Chapter Board of Officers, or at the instance of any person, initiate and prosecute proper charges against erring attorneys including those in the government service.

[37] 501 Phil. 1, 10 (2005).

[38] Lahm III v. Mayor, Jr., 682 Phil. 1, 8 (2012).

[39] Ali v. Bubong, 493 Phil. 172, 182 (2005).

[40] Re: Rafael Dimaano, A.M. No. 17-03-03, July 11, 2017.

[41] Rollo, pp. 297-298.

[42] 417 Phil. 724, 730 (2001).

[43] A.C. No. 8677, June 15, 2016, 793 SCRA 309, 315.

[44] Rollo, p. 116.

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