For defying a court order and granting “unwarranted benefits” to a contractor, the Supreme Court directed the Office of the Ombudsman (Visayas) to file charges against a town mayor, municipal treasurer and owners of a private construction firm for violation of the Anti-Graft and Corrupt Practices Act (RA 3019).
The High Court in its March 30, 2009 ruling also chided the Ombudsman Visayas for committing grave abuse of discretion in finding that there was no probable cause against the respondents.
The petitioner assailed the Ombudsman Visayas ruling clearing the respondents of violating Section 3 (e) of RA 3019 which provides that public officials “causing any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his official, administrative, or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence…” are considered as corrupt practices therefore unlawful. The petitioner accused respondents of graft and corruption after they released the retention money to Legacy despite the February 11, 2003 writ of preliminary attachment issued by the Regional Trial Court that would cover the P 1, 766,950, the construction firm owes to the petitioner. Court records show that on August 13, 2000, a 300-day P 14, 621, 967.79 contract to the construction firm to improve the town’s waterworks system. The firm through its project engineer, purchased from the petitioner pipes worth P2, 816, 590 million. Bu the two personal checks issued to the petitioner were not honored. The petitioner then demanded that the firm pay P1, 766.950, the cost of pipes already delivered, but was rebuffed.
Thus on April 15, 2002 the petitioner asked the town mayor to settle the firm’s obligation by using the retention money withheld by the municipal government for the waterworks project. Retention money is a form of security at ten percent of the total amount of project cost, which seeks to ensure that the work is satisfactorily done and on schedule. It is withheld by the procuring entity form progress payments due to the contractor to guarantee indemnity for uncorrected discovered defects and third-party liabilities.
After a requisite hearing the RTC found out that one of the firm’s owner has left the country and the only way to recover Legacy’s liability with the petitioner is the balance of the contract price amounting to P 3 million including the retention money thus the court issued on February 7, 2003 a writ of preliminary attachment prohibiting the mayor or his agents from releasing any payment including the retention money to the firm. However, the mayor invoking the February 4, 2003 legal opinion of the Provincial Attorney instructed the municipal treasurer to release on March 12, 2003 the retention money to the firm.
Although charged with the mayor, the High Court spared the provincial attorney and even upheld his opinion that the project engineer had no authority to purchase supplies for Legacy and that petitioner failed to prove the pipes were used in the water works projects so it could not invoke its supplier’s lien. Furthermore, it was noted that the provincial attorney rendered his opinion before the RTC ordered the issuance of the writ of preliminary attachment and neither facilitated nor participated in releasing the amount to the firm.
The respondents appealed the January 20, 2009 Supreme Court Ruling but the motion for reconsideration was denied with finality on March 30, 2009 by the 1st Division chaired by Chief Justice Reynato Puno with Justices Antonio Carpio, Teresita Leonardo-De Castro and Adolfo Azcuna, who has since retired, concurring. The respondents of this case are Valencia Mayor Rodolfo “Odol” Gonzales Jr., municipal treasurer Rolando Obanana and private firm Legacy Construction owners Alex Abelido and Dominador Abelido, Provincial Attorney Erwin Vergara and Ombudsman Visayas. The petitioner is the New Bian Yek Commercial Incorporated represented by Danford Sy.
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i do not find this case well. the LGU unit may have acted in bad faith to honor a commitment they have agreed with the contractor and avoid possible breach of contract. on the other hand, for not acceding to the order (??) they got the ire of the supplier. either way, they get sued!
a news item about an LGU head getting sued for malversation, corruption or pocketing money of the government is much preferred. this mayor was just bull headed and solved the issues at hand.
i would have done the same given the circumstances mentioned in this news item. these are procedural lapses and the decision to pay may have been the right move at that time.
the supplier who sued is a third party to the contract between the LGU and the contractor. the case may have prospered because the complainant has the monetary and legal means to file suit, otherwise, this could have been settled amicably.
most often COA rules are too vague to follow.
I don’t like this “damn-if-you-do-damn-if-you-don’t” argument peddled in favor of Mayor Odol Gonzales. Gonzales defenders are saying “he could be sued either way”. Either Gonzales deliberately defied a court order or he hasn’t taken a good look at the rules of court or hasn’t received good advice. If Gonzales was hell bent in paying the contractor (for whatever reason), he could have posted a counter-attachment bond to discharge the attachment. Why didn’t post the counter-attachment bond? That is what the rules accord to defeat an attachment order. Did he file a certiorari petition to question the attachment order? What is on record is he defied a lawful order of the court. That is not to be done because that is putting the law into one’s hands. Besides, what would Gonzales prefer, face a mere civil suit of contractual breach, or a criminal suit for graft which has a punishment of imprisonment for up to ten years? Isn’t the choice clear? In the face of a court prohibition, why insist on paying the contractor? Now, that’s a $64-dollar question.
these lapses should not be taken lightly.
time to investigate and punish those who do not follow the law. but first make the law enforceable and fair.
probably, this is the reason why the head of this LGU is trying to cling to the post despite having served 3 terms by letting their closest relatives and die hard supporters to run in the next election.
perhaps the reason why the vice mayor who had served loyally the incumbent had been junked in favor of relatives who had not even managed a sari-sari store.
Maskig unsa pay iingon nalipay tawon ko nga ang amo tubig nikusog ang agas. Daghan pod makita na project nahuman maskin naay corruption kono hay at least naay mihora na ang valencia ni prosper.
you are right just comments. for several decades, valencia water, which is the same source for a long time for dumaguete users had been very intermittent. water flows like molasses while dumaguete had a good water pressure, courtesy of the dam at valencia.
for the last 3 or 4 years, valencianon, had good water pressure even in the higher areas because of the rehabilitated and bigger supply pipes.
however, the end does not justify the means. personally for me, should there be no corruption or money has not changed hands in the transaction, it’s ok.
emarjay maybe right, they should have observed some legal procedures to avoid the suit. i hope theirs was not a move because of the advice from the niece-municipal attorney or worse “grease money”.
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