When it rains, it pours.
The Office of the Ombudsman has found suspended Cebu Gov. Gwendolyn Garcia and five other officials guilty of grave misconduct for the 2008 purchase of the Balili beach property in Naga City.
The decision in the administrative case signed on Jan. 25 by Ombudsman Conchita Carpio Morales said public funds were misused to buy private property that was mostly submerged in the sea.
Garcia and former Provincal Board Member Juan Bolo, however, were spared from the full penalties under a legal doctrine that protects officals who are reelected to office, in this case the 2010 election.
The full weight of penalties instead falls on five other Capitol officials who were ordered dismissed from government service.
The five are retired Provincial Assessor Anthony Sususco, Provincial Treasurer Roy Salubre, Provincial Engineer Eulogio Pelayre, and Provincial Budget Officer Emme Gingoyon who have to "immediately" serve the penalties against them.
Aside from losing their jobs, they forfeit their retirement benefits, are disqualified from being rehired in government service, and are barred from holding public office.
They belonged to the Provincial Appraisal Committee that evaluated the Balili land.
In a 26-page Joint Decision, Ombudsman Morales said the administrative liability of Garcia and Bolo "has been mooted by their reelection in the 2010 National and Local Elections" while the other four men suffer dismissal from service along with its accessory penalties.
This means that Garcia, who is seeking election in May as congresswoman of Cebu's 3rd distrcit, is still free to run for office. Bolo, who now resides in Dapitan, said he would
Under the Aguinaldo Doctrine of the Supreme Court (see box), a re-elected public official is spared from administrative liability done during his prior term. In effect, Garcia's reelection in 2010 condones her past lapses.
(Cebu Daily News noted , however, that Bolo didnt win in the 2010 elections when he sought reelection as PB member for Cebu's 1st district.)
Garcia and the respondents still face three criminal cases for the Balili lot purchase before the Sandiganbayan for acquiring 24.9 hectares of coastal land for the price of P98.9 million.
An arraignment, trial and possible preventive suspension order for Garcia lie ahead.
Garcia's daughter and legal counsel Christina Codilla-Frasco declined to comment on the latest developments.
She referred queries to the family's lead counsel in Manila, Tranquil Salvador III.
Salvador, in a text message to CDN, said the administrative liabitlites against Garcia were already mooted.
"No liability or penalty (shall be imposed) against the governor (Garcia) since she has been reelected and exonerated by the voters," he said.
If the Ombudsman's ruling is used to reinforce the criminal case, he said, that shows their case is weak.
"The special prosecutor says that they will use it (Garcia's conviction in the administrative case) in the Sandiganbayan. It is a clear admission that their criminal case is weak since they still need the evidence in administrative case," he said.
"Besides, the degree of evidence required in administrative cases is substantial evidence which is different in criminal cases, that is, proof beyond reasonable doubt. How can lesser degree of evidence (in the administrative case) prove a case that requires a higher standard or degree of evidence ( in the criminal case)?I don't think it will strengthen their case," he added.
Deputy Ombudsman for the Visayas Pelagio Apostol said the administrative penalties are "immediately executory".
The six respondents along with land owners Amparo and Romeo Balili are facing separate criminal charges before the Sandiganbayan's 2nd division over the Balili lot fiasco.
They all posted bail and are awaiting a schedule for arraignment and trial. The Ombudsman recently denied for "lack of merit" their motion for reconsideration in the criminal cases.
A press statement from the Office of the Ombudsman in Manila said the administrative case stemmed from three separate complaints filed by the Office of the Ombudsman -Visayas' Public Assistance and Corruption Prevention Office (PACPO-Visayas), Manuel Manuel and Crisologo Saavedra.
The case involves the province's purchase of 11 parcels of land with a total area of 24.9 hectares for which P98.9 million was paid in cash.
Garcia signed a Memorandum of Agreement (MOA) for the acquisition of the Balili Estate in barangay Tina-an, Naga at P400 per square meter.
The Ombudsman's decision said the deal was tainted with with irregularities as the province at the time had no available funds for the purpose of "providing a good opportunity for the Province of Cebu to develop and cater to the needs of interested investors."
It said 50 percent of the total payment by the Capitol "acutally came from the (P50 million) budget of the province not specifically earmarked for that purpose but for Site Development and Housing Program under Social Services."
The decision noted that of the 11 parcels of land, about 196,696 square meters of the total area of 249, 246 square meters is submerged in seawater", hence it can't be used for the purpose of developing an international seaport and attract investors nor even for site development or housing.
It added that "the use of funds for a purpose other than the specific purpose for which the fund was appropriated is per se illegal."
Garcia is facing two counts of graft and one count of illegal use of public funds before the Sandiganbayan. A Hold Departure Order (HDO) was also issued against Garcia and the others, preventing them from traveling abroad.
Part of the beachfront property is now being developed as a coal ash waste landfill.
In past reports, Garcia denied any wrongdoing in the the land purchase. She said she was "not aware" that most of the property was under water because she relied on the report of the provincial appraisal committee. She said even if the land is submerged in the sea, it could be reclaimed and backfilled with soil to be used for projects.
The Aguinaldo Doctrine saved Garcia and Bolo from dismissal and other administrative liabilities, said Visayas Ombudsman Pelagio Apostol.
This means the suspended governor and Bolo can still run for public office.
"As the Aguinaldo doctrine upholds, a re-elected official has been condoned of his or her previous mistakes by the electorate. They were given a fresh mandate amid the administartive charges filed against them," Apostol explained.
They can contest the verdict before the Court of Appeals "but they have to serve the penalty pending resolution of their appeal," Apostol said.
Apostol said the recevent development was a "victory on the part of the Ombudsman" and that the Balili case served as a lesson to all government officials and employees "to be careful."
"We will not hesitate filing charges against anyone if there are irregularities. We will not relent in our fight against corruption," he said.
The Capitol, he said, should have not bought the Balili beach property since it was submerged in water.
"The sea is owned by the State. It is not subject ot the commerce of man."
Acting Gov. Agnes Magpale, in a separate interview, said she believes Garcia is ready to face the charges.
"I'm sure the suspended governor is ready. She has a battery of lawyers. They know what to do," Magpale said.
Cebu City south district Rep.Tomas Osmeña said he was confident Garcia would end up in jail.
"You do not have to be an expert because the property is under the sea. Who is foolish enough to buy land that is underwater?"