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LOPEZ, Dominena R. Re: Dishonesty and Grave Misconduct; Appeal x - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
RESOLUTION NO. 01-
Dominena R. Lopez, through counsel, appeals the Decision dated April 20, 1999 of the Commission on Audit (COA), finding her guilty of Grave Misconduct and Dishonesty and meting out the penalty of one (1) year suspension without pay.
The relevant portions of the COA decision are quoted, as follows:
"Upon a very careful evaluation of the entire records of the case, this Commission finds respondent to have committed acts constituting dishonesty and grave misconduct. Dishonesty' has been defined asan absence of integrity, disposition to betray, cheat, deceive or defraud; bad faith.' (Arca vs. Lepanto Consolidated Mining, CA-G.R. No. 17679-R, November 24, 195). On the other hand, `misconduct' is used to refer to a transgression of some established and definite rule of action, more particularly unlawful behavior or gross negligence by the public officer. (Moreno, Philippine Law Dictionary, second ed.) Under these definitions, the acts of respondent cannot otherwise be but dishonest when she tried to mislead the investigating committee that she had actually refunded the unauthorized disbursement prior to the institution of the first administrative case against her for simple misconduct (No. 97-031) when in truth and in fact, she had not done so. She also offered a falsified document as evidence in the said case against her. How she was able to secure a blank accountable form from the Agency in order to falsify the same surely could not be thru proper and legal means. She did not even display remorse by stating that there was really no need for her to
refund the amount she received from the Agency as it was `her privilege to attend the GACPA Convention.'
"Respondent is, therefore, found guilty of Grave Misconduct and Dishonesty, both classified as grave offenses under Civil Service Commission Memorandum Circular No. 30, s. of 1989. In view, however, of the mitigating circumstances of good faith and length of service in the government, this Commission is willing to accord the respondent some measure of leniency.
"WHEREFORE, respondent is hereby suspended for one (1) year without pay, effective upon the receipt of this Decision and is strongly admonished to refrain or desist from committing the same or similar irregularity in the future which shall definitely be dealt with more severely. The Director, COA Regional Office No. IV, Quezon City, shall ensure the smooth implementation of this Decision."
In her appeal, Lopez alleges the following:
"The Honorable Commission on Audit has decided two Decisions, dated March 23, 1999 which was not appealed and the other decision dated April 20, 1999 which was received by the respondent-appellant on June 15, 1999. The said decision promulgated by the Commission grossly violated the constitutional right of the herein respondent considering that the first action filed against the respondent-appellant has been decided and terminated with finality while the other is still pending, thus, contrary to the established jurisprudence, in the case of Vallangca vs. Court of Appeals, 173 SCRA 42 while in the case of Filipinos Investment and Finance Corporation vs. Intermediate Appellate Court, 179 SCRA 728, the Supreme Court ruled `That the doctrine of res judicata is an old axiom of the law dictated by wisdom and sanctified by age, and is founded on the broad principle that it is to the interest of the public that there should be an end to litigation by the same parties over a subject once fully and fairly adjudicated'. Granting arguendo, that the institution of two different in forms of two actions, the doctrine of res judicata applies where the parties in the suit were in effect litigating the same thing (Filipino Investment and Finance Corporation vs. IAC, 179 SCRA 728).
the said respondent-appellant.
"To attend such convention without duly approved travel order and that purpose of travel was not predicated with and in the absent of showing that it was motivated, by malice or gross negligence amounting to bad faith is not actionable specifically, the respondent has been penalized and later on, charged again is a fatal defect in violating the constitutional rights of the respondent-appellant.
"DISCUSSION
"Gleaned from the facts of the case, the controversy is the lis mota of whether respondent-appellant can be charged with another Administrative Case after the first case has been decided and respondent meted the three month salary fines.
"As perused to the commencement of two actions, it amounts to the violation of the principle of res judicata.
"The filing of this case is likewise defective in the sense that respondent-appellant has been serving the 3 months fine as imposed by the Commission considering and admitting that respondent was made to face two cases brought about by the Commission involving the same issues and the same party litigates, the filing of the new administrative case relying the result of the first case is solely a gross violation to res judicata."
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When asked to comment, the Commission on Audit, through Commissioner Raul C. Flores, stated the following:
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"DISCUSSION
"The First Administrative Case Decided Against the Appellant does not Constitute Res Judicata on the second
"One of the requisites of bar by former judgment is that there is between the first and the second proceedings an identity of causes of action. `In determining whether causes of action are identical so as to warrant application of the rule of res judicata, the test most commonly stated is to ascertain whether the same evidence which is necessary to sustain the second action would have been sufficient to authorize a recovery in the first, even if the forms or nature of the two actions will be different. If the same facts or evidence would sustain both, the two actions are considered the same within the rule that the judgment in the former is a bar to the subsequent action; otherwise it is not.' (Nabus vs. Court of Appeals, 193 SCRA 732)
"Gleaned from the above-cited COA Decisions, the cause of action in the first case against appellant is her unauthorized travel to GACPA for which she claimed expenses therefor from the auditee agency; whereas in the second it is her falsification of official document and offering the same in a quasi-judicial proceeding as evidence. Obviously, the evidence necessary to sustain the charge for unauthorized travel is very much different from the evidence to establish forgery and/or use of falsified document. Thus, there is no identity of causes of action in both cases.
"Res judicata is an affirmative defense that is pleaded in a Motion to Dismiss or in the Answer. Having availed of both remedies, appellant has not raised this issue except in this appeal in an apparent attempt to change her theory of the case.
"The Constitutional Right Against Double Jeopardy Does not Apply
"For clarity and comprehensive discussion, we emphasize that Appellant invoked double jeopardy in her Motion to Dismiss, dated November 10, 1998, but which was not given due course by the Commission because the earlier case for simple misconduct is separate and distinct from the second charge of grave
On September 15, 1998, the COA found Lopez guilty of Simple Misconduct under COA Decision No. 98-401. Pertinent portions of the decision are, as follows:
"After the case had been closed following its submission for resolution upon oral manifestation of both parties, the Resident Ombudsman of Region IV, in compliance with the request of the Prosecutor for a certified true copy of the Official Receipt evidencing refund of the traveling expenses claimed by respondent, submitted a supplemental report, dated February 19, 1998, modifying her previous investigation report which formed the basis of this complaint stating that upon verification, she discovered that the original of OR No. 8399050 was, contrary to the declaration of respondent, actually for the payment of the salary of DAR-Region IV personnel. She supported her new findings with the sworn statements, dated February 19, 1998 of the Provincial Cashier declaring among others, that the original OR No. 8399050 is in her possession, that it was signed not by her, because she was on leave at that time, but by the acting cashier, that the true date of the subject receipt was April 16, 1997; and, that it was for the payment of salary of DAR-Region IV personnel in the amount of P156,122.04.
"After evaluation of the entire records of this case, this Commission finds the explanation of respondent untenable. As a seasoned auditor, and a responsible representative of this Commission, respondent is expected to be knowledgeable or conversant with auditing rules and regulations. She cannot hide behind the defense of good faith, or absence of intent to bypass her superior authorities. Her defense of good faith is belied by her stubborn belief and assertions that her enjoyment of the privileges to attend convention and taking of leaves is a matter of right. It must be emphasized that the demands and interests of the public service must always take primacy over personal interests. So, too, her alleged good faith was negated by the fact that she submitted a falsified document to show that she refunded the amount irregularly claimed by her when in truth and in fact there was no such refund made. At any rate, the act of restituting the amount so taken does not extinguish her administrative liability but merely relieves respondent of her civil obligation to repay the government of the fund received without authority.
"WHEREFORE, respondent is found guilty of simple misconduct. Considering that this is her first offense on record, she is hereby fined in an amount equivalent to her three (3) months' salary payable
immediately in lump sum and ordered to restitute the amount of P8,496 representing the traveling expenses irregularly claimed."
Believing that the finding and the penalty were undeserved, respondent filed a Motion for Reconsideration dated November 9, 1998, on the grounds that:
"1. Respondent's travel to Cebu to attend the GACPA Convention was not so reprehensible as to merit severe punishment;
"2. Respondent never intended to defraud the government by her act in making it appear that she has already refunded the amount of P8,496.00 representing her travel expenses to Cebu; and
"3. The instant charges are but a product of the animosity or hatred that the Provincial Auditor had been harboring against the respondent."
In a decision dated March 23, 1999, the COA saw no cogent reason to reconsider the assailed decision and affirmed with finality the decision finding Lopez guilty of Simple Misconduct and Violation of Reasonable Office Rules and Regulations.
On March 27, 1998, appellant was again charged for Grave Misconduct and Dishonesty for her acts of falsifying O.R. No. 8399050 and offering the same in a quasi-judicial proceeding as evidence that she refunded the amount irregularly claimed when in truth and in fact she did not do so.
On November 10, 1998, Lopez filed a Motion to Dismiss Administrative Case 98-011 for Grave Misconduct and Dishonesty invoking double jeopardy.
On April 20, 1999, the COA found her guilty as charged of Gross Misconduct and Dishonesty and meted out a suspension of one (1) year. Hence, this appeal.
same in a quasi-judicial proceeding as evidence. Clearly, the first and second cases do not share the same cause of action.
It may be recalled that in the first case, Lopez was found guilty of Simple Misconduct under COA Decision No. 98-401, on the basis of her unauthorized attendance of the GACPA Convention. Based on the said decision, it becomes clear that the evidence on the falsification of official document was not taken in consideration in deciding the first case against Lopez. The falsification committed by Lopez was never an issue in the said action nor was it admitted or judicially determined. Hence, it cannot be said that it was conclusively settled in the prior judgment.
A careful evaluation of the records reveals that the issue on the act of falsifying an official document was neither considered nor appreciated in the prior case. At most, the falsified document was used only to show that the appellant acted in bad faith. Significantly, the allegation of falsification committed by the appellant was discovered and came about only after the first case was closed and submitted for resolution. Hence, the proceedings in the first case could not have validly appreciated and considered the falsification and the offer of the same in determining the liabilities of the appellant.
Considering that there is no similarity in the causes of action between the first and second case, and since the issue on falsification has not been appreciated in the prior case, res judicata will not apply.
Finally, after a thorough review of the records, the Commission finds that there is substantial evidence to prove that the appellant is guilty of Dishonesty and Grave Misconduct.
It is of record that appellant presented a photocopy of the Official Receipt of the Republic of the Philippines No. 8399050, to make it appear that she had already refunded the amount of eight thousand four hundred ninety six (P8,496.00) representing her traveling expenses in attending the convention. However, further investigation revealed that the original of said receipt was actually for the payment of the salary of personnel of Department of Agrarian Reform - Region IV, her auditee-agency. Clearly, appellant was in bad faith when she misrepresented that she had already refunded the amount by presenting the falsified document.
There is no doubt that the respondent committed the offense of Dishonesty when in the course of her duty as State Auditor IV, she fraudulently and unlawfully falsified the official receipt and used the same. It is to be noted that “dishonesty is the concealment or distortion of truth in a matter of fact relevant to one’s office or connected with the performance of his duties (CSC Resolution No. 96-1392 dated February 23, 1996), or an absence of integrity, disposition to betray, cheat, deceive or
Resolution No. 96-1392 dated February 23, 1996), or an absence of integrity, disposition to betray, cheat, deceive or defraud and there is bad faith. (Moreno, Philippine Law Dictionary, Third Edition) Indeed, the elements of cheating, deceit, and bad faith were present in the act of Lopez.
On the other hand, Gross Misconduct is a “transgression of some established or definite rule of action, more particularly unlawful behavior or gross negligence by the public officer” (Alcoba, Victor, CSC Resolution No. 97- dated January 28, 1997). Evidently, the act of the appellant in knowingly using a falsified document amounted to Gross Misconduct.
Truly, falsification of official document and use of the same constitutes the offenses of Dishonesty and Grave Misconduct penalized with dismissal from the service.
The Commission has noted, however, the misapplication of the penalty by the COA in the instant case. Appellant having been found guilty of Grave Misconduct and Dishonesty, she must be meted the penalty of dismissal, as provided for under Section 5(A) of the Uniform Rules on Administrative Cases in the Civil Service. And since the penalty of dismissal is an indivisible penalty, the mitigating circumstances of good faith and length of service, will not lower the penalty mandated by the Rules. (Guitterez, Alan, CSC Resolution No. 95-2988) “Verily, it is a settled rule that the presence of mitigating circumstance such as length of service of the appellant does not have any effect in the imposition of the penalty of dismissal.” (Mallanta, Fely L., CSC Resolution No. 00-0180)
WHEREFORE , the appeal of Dominena R. Lopez is hereby DISMISSED. Considering however, that the offenses Dominena R. Lopez was found guilty of are Grave Misconduct and Dishonesty, she is meted the penalty of dismissal from the service. Accordingly, the COA Decision dated April 20, 1999 is hereby modified.
Quezon City, February 2, 2001
(SIGNED) CORAZON ALMA G. DE LEON Chairman
