CA denies appeal of dismissed Pilar mayor

The Court of Appeals (CA) has denied the second appeal of Ombudsman-dismissed Pilar Mayor Necitas Cubrado, finding no stronger or more convincing argument to reverse its earlier ruling.

The Special Former Twentieth Division of the CA in Cebu City junked Cubrado’s motion for reconsideration further for “lack of merit.”

The Office of the Ombudsman last year dismissed the lady mayor of the third district town of Bohol after finding her guilty of grave misconduct.

Assailing the Ombudsman’s decision as being rendered with “grave abuse of discretion,” Cubrado appealed through a petition to the CA for certiorari.

But the CA, in a resolution also last year, outright dismissed her petition for “being a wrong remedy.”

Cubrado was, thus, prompted to file a motion for reconsideration, but which was also thumbed down by the appellate court in its latest resolution,.

In trashing the motion, the CA said, “We find no argument which is substantially plausible or compellingly persuasive to warrant a modification, much less a reversal of our (first) resolution.”

The CA denied the second appeal in a resolution penned by Associate Justice Pamela Ann Abella Maximo.

Promulgated on March 26, this year, the resolution was concurred by the two other associate justices of the special CA division, Geraldine Fiel-Macaraig and Gabriel Robeniol.

Cubrado’s dismissal by the Ombudsman carries the accessory penalty of perpetual disqualification from holding any public office.

THE CASE IN BRIEF

Case records showed that in 2015, Cubrado authorized the issuance of a certificate granting exemptions to several residents of her town from paying fees for the electrical connection of their homes.

This was pursuant to the Nationwide Intensification of Household Electrification Program of the Department of Energy.

In its resolution finding her guilty of grave misconduct, the Ombudsman said the mayor granted exemptions to some residents without securing the prior approval of the Sangguniang Bayan.

The mayor thereby “deliberately disregarded the provisions of the Local Government Code,” the anti-graft body said.

The Ombudsman said the mayor “evidently overstepped the scope of her authority and encroached upon the powers and prerogatives” of the municipal council and legislature.

The mayor said the Ombudsman “overlooked certain facts which, if considered, would result in a finding that there is no substantial evidence for grave misconduct” against her.

As a result of the illegal issuance, the Ombudsman had also ordered the filing with the Sandiganbayan of one count of violation of usurpation of legislative power against Cubrado.

SUSTAINING DISMISSAL

In denying Cubrado’s motion for reconsideration, the CA sustained its earlier outright dismissal of the mayor’s petition for certiorari.

Last year, Cubrado petitioned for certiorari in assailing the Ombudsman’s decision finding the mayor guilty of grave misconduct.

In its resolution dated September 7, 2017, the CA outrightly dismissed the certiorari petition, ruling that the “appeals from decision of the Ombudsman in administrative disciplinary cases should be filed under Rule 43 of the 1997 Rules of Civil Procedure.”

In September 26 of the same year, Cubrado, invoking Rule 65, filed the motion for reconsideration of the outright dismissal of her certiorari petition.

She asserted that a certiorari petition under Rule 65 is distinct and separate from an ordinary mode of appeal such as an appeal under Rule 43.

Thus, the petition for certiorari can be availed of separately from a petition for review, Cubrado said.

The mayor said her certiorari petition was the proper remedy because the assailed Ombudsman decision was final and executory.

Further, Cubrado said a petition under Rule 65 was the “only available remedy that would relieve her from the injurious effects of the Ombudsman decision being rendered with grave abuse of discretion.”

But the CA still denied the reconsideration motion and sustained the outright dismissal of the certiorari petition.

PROPER REMEDY MISSED

“At pain of being repetitious, the proper remedy to question a decision of the Ombudsman in an administrative disciplinary case is an appeal under Rule 43, in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies,” the CA said.

The appellate court said it found “no reason to depart from the established rules which have been reiterated in subsequent cases.”

Cubrado’s remedy to assail the Ombudsman decision should have been an appeal under Rule 43 and not a petition for certiorari, the CA said.

According to the CA, the remedy of certiorari from an unfavorable decision or resolution of the Ombudsman is available only in the following situations:

  • In administrative cases that have become final and unappealable where respondent is exonerated or where respondent is convicted and the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to a one-month salary; and
  • In criminal cases involving the Ombudsman’s determination of probable cause during preliminary investigation.

The CA said the writ of certiorari is an extraordinary remedy and is only granted when there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.

These circumstances were “not attendant” to the instant case and, thus, Cubrado’s petition for certiorari was “procedurally infirm,” the CA said. (Ven rebo Arigo)

 

 

 

 

 

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