Nelson Garcia (CDN FILE PHOTO)
After failing to convince the governor to lift the preventive suspension issued against him, Dumanjug Mayor Nelson Garcia is now seeking redress with the trial court.
Garcia on Thursday went to the Cebu City Regional Trial Court and sought a temporary restraining order (TRO) and an injunction to rescind the 60-day preventive suspension issued against him by Gov. Hilario Davide III last April 11.
Named respondents in the petition were Davide, the Cebu Provincial Board (PB), and Dumanjug Vice Mayor Efren Guntrano Gica.
In his petition, Garcia told the court that the Cebu Provincial Board did not give him due process before issuing the preventive suspension, which the Supreme Court stated must be used sparingly; that the Local Government Code gives mayors the sole authority to fill in vacant career positions; and that his purported violation was carried out during his previous term so his reelection should make the administrative case against him moot point.
Garcia also asked the court to order the dismissal of the administrative case filed against him by Gica who accused him of usurpation of power for designating a new municipal council secretary.
“There is no other plain, speedy and adequate remedy in the ordinary course of law to prevent this grave and irreparable injury,” said the petition for certiorari, prohibition and injunction prepared by lawyers Pablo John Garcia, Ramsey Quijano, and Jemil Christian Marquez.
Davide earlier explained that he approved the PB recommendation to suspend Nelson for two months so the mayor won’t influence witnesses and evidence during the investigation of his case.
Nelson’s lawyers, however, said a preventive suspension of elective local officials is not automatic upon the filing of an administrative case against them.
“In a long line of cases involving the preventive suspension of elective local officials, the Supreme Court has urged the disciplining authority to use the power of preventive suspension sparingly, and only where there is clear and substantial evidence…,” they said.
Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of authority, they added.
In the first place, they said, the case Gica filed against Nelson “lacks factual or legal basis”.
The Local Government Code clearly states that only the chief local executive can decide to fill a vacant career position, the lawyers added.
When Nelson designated Emmylou Cabonilas as acting secretary of the municipal council of Dumanjug, it was because the person who previously held the position had retired last June 26, 2013. The temporary designation of Cabonilas as acting SB secretary was made upon the request of the majority of the SB members, said Nelson’s lawyers.
When Gica assumed office as vice mayor of Dumanjug, he appointed Nerio Aquino as SB secretary. But Nelson’s lawyers said the appointment of Aquino is a violation of article 80 of the Local Government Code which grants the chief local executive or the mayor to fill a vacant career position.
“It is clear that, under the cited provision, the power to decide whether or when to fill a vacant career position, such as the SB secretary, belongs exclusively to the local chief executive,” they said.
Also, Nelson’s lawyers said the appointment of Aquino was made without the local Personnel Selection Board (PSB) which is tasked with screening possible appointees. The mayor heads the PSB.
To prove that Gica was in the wrong, Nelson’s lawyers said the Civil Service Commission invalidated the appointment of Aquino.
“There was, from the beginning, and there is, to this day, no appointment to speak of, and no basis for Vice Mayor Gica’s charges against the petitioner,” they said.
The lawyers claimed that Garcia was not given due process by the PB before it recommended the preventive suspension against Nelson. Also, they said that there is even a question as to whether Nelson may be held administratively liable for an alleged act undertaken during his previous term after he was reelected to the same position.
The Supreme Court has repeatedly upheld the “Aguinaldo Doctrine” which renders moot all administrative cases filed against any public official during his previous term immediately after the official’s reelection.
The central argument of the doctrine is that an erring public official has been forgiven by his constituents of any administrative liability if they reelect him in office.
“This honorable court will note that the act complained of is the designation of Cabonilas as acting SB secretary during the previous term of the petitioner. The petitioner is now serving a fresh term which began in July 2014,” Nelson’s lawyers said.
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