prohibited transfer

8/12/2019 Prohibited Transfer

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ME.MORANDUM

FOR

FROM :

SUBJECT :

DATE

Assistant Commissioners, Regional and Clustt>l Dkectorsand All C(lucerned Officials and Employees

Office of the Chairman

COMELEC Memorandum No 13-2173 (Law 13-2003)Ganting COA ltequest for Exemption (if necessarY) onthe Tmnsfer of Its Officials and Employees under OECSec. 261 (H)03 April 1.013

Transmitted herewith is a copy of COMELEC Memorandum No. 13-2) 73 (Law 13-2003), the dispositive portion of which reads as follows:1. Declare that the t r a n s n ~ a s s i n m n t d e s i o n s of its employees eflectedbefore 13 January 2013 are NOT covered by the ban, subject hereof; and2 APPROVE the present request of Chairperson Maria Gracia M Pulido Tancovering the proposed transJer/reassignment/designation of its employees effected

after 13 January 2013.For your information and guidance.


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Repub lic o f th e Philip pin esCOMMISSION ON ELECTIONS

Intramuros Manila

aw epartment.e:.~J.:L .1 9~l ~1J lj;j~7LETTER O F THE CO M M ISSIO N O N AUDIT ONTHE TRANSFER O F ITS EM PLOYEES UNDEROEC SEC . 261 Hx - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

NOTICE

H O N . M ARIA G RACIA M . PULIDO TANChairpersonCommission on AuditCommonwealth Ave. Quezon City

G RE ET IN SFor your information and guidance attached is a copy of the approvalfrom the Office of the Chairman this Commission in the above entitled matter.Thank you very much.March 25 2013 .

.~A TT Y. E SM E RA LD A AMORA LAD~Director IVEncl.: a jsAZMT:a ng ie : imple 13 2173 LAW 132003} Pu lido Tan


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FOR

Republic of the PhilippinesCOMMISSION ON ELECTIONSIntramuros, Manila

LAW DEPARTMENT

SUBJECT: LETTER OF THE COMMISSION ON AUDITON THE TRANSFER OF ITS EMPLOYEESUNDER OEC SEC. 261 H

DATE 11 MARCH 2013

This pertains to the letter of Hon Maria Gracia MPulido Tan Commission on Audit Chairperson dated 16January 2013, which was received by this Office on 11February 2013, requesting for immediate exemption ifnecessary) from the provision of Section 261 (h) of theOmnibus Election Code, thus stated:

xxx

This is to inform you that on January 11, 2013, I issued inmy capacity as Chairman and Chief Executive Officer of theCommission on Audit several Office Orders reassigning about 8,000of out officials and employees.

xxxThe Office Orders expressly state that the reassignments areeffective January 11 2013 . The Order expressly state, in

keeping with pertinent rules of the Civil Service Commission, that thereassigned personnel shall secure the necessary clearances fromtheir former stations within 30 days from their receipt of the Orders, without prejudice to their immediate assumption of office attheir new places of assignment.

It is my humble and considered optn or that with theeffectivity of the reassignment transfers having been expresslystated to be January 11, 2013, the said reassignmenttransfers are


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outside of the prohibited period starting from January 13 2013.That any concerned official and/ or employee should assume on orafter January 13 should be of no moment, because by expresslanguage of Sec. 1.A.1 of Comelec Resolution No. 9581, theprohibition is to make or cause any transfer or detailwhatsoever of any officer or employee in the civilservice starting January 13 2013.

Clearly, the act of transferring or causing any transfer wasmade on January 11 and made effective also as of that date. Isubmit that the affected officials and employees cannot vary theeffective date thereof by the mere expedient of assuminq their newposts thereafter. Otherwise, the inherent authority of the dulyconstituted officer to make or cause such transfer would be greatlyundermined, and the affected personnel will effectively be given theabsolute prerogative to decide for themselves whether or not tocomply with such Orders. In this case, the reason for the ban -which is essentially to insulate the civil service from partisan politics- will be rendered nugatory because then, the affected personnelcan choose to remain in his post for political expediency by simplyinvoking that he cannot assume his new post because of the ban.

xxxIt is in this light that I am bringing this matter to your

immediate attention. To reiterate t s humbly submitted thatthe transfers/reassignments took effect o the date expresslystated in the Orders i,e, January 11 2013 regardless of thedate of assumption of the concerned personnel; hencebefore the effectivity of the ban and therefore we do notneed to seek exemption. January 11 fell on a Friday, and sincemany of the reassignments involved moving from one locality toanother, physical assumption could not be made on the same day,or even on January 12 for that matter, as it fell on a Saturdaywhich is a non-working holiday.

Should the Commission on Elections deem it otherwise,however, please consider this as an urgent request for exemption foryour immediate favorable consideration. We need your guidanceand approval at the soot st possible time to enable us to effectivelyand fully carry out these transfers. Already, we have receivedinformation that the Sanggunian Panlalawigan of a NorthernProvince will be issuing a Resolution to the effect that aesumptionon or after January 132 13 is covered by the ban and will holdCOA for election offenses should such assumptions be allowed toproceed. It is not farfetched that other government units will followsuit.

xxxWe have approved on 05 February 2013 the earlier

request of the Commission on Audit for authority to transferits higher level employees, such as Assistant Commissioners,Directors, Supervising Auditors, etc.


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As a consequence of the Office Orders issued by COA, welikewise received three (3) letters from COAemployees subjectof the transfer and detail orders, questioning the acts of COAChairman Pulido Tan for being violative of the election laws.Two (2) letters were anonymous and one (1) is from StateAuditor Carlito C. Matias.

Pertinent portion of their letter reads as follows:Chairperson Tan in her letter dated January 16, 2013addressed to your goodself opined that thereassignment/transfer dated January 11,2013 of the officersand employees of the Commission on Audit are outside of theprohibited period starting January 13, 2013 in relation to Sec.1.A.1 of Comelec Resolution No. 9581. The prohibition is tomake or cause ay transfer whatsoever of any officer oremployee in the civil service starting January 13, 2013.

Partially Chairperson Tan is correct, that is, if we focusonly on the date of the reassignment orders and transmissionof the orders to the various COA Regional Offices. However,the officers or employees are one of the key essential elementsof the prohibition. To make the reassignment compliant withthe election ban the date of the order and the actualassumption of the officers and employees (members of therank and file association) to be reassigned is crucial. In COARegion X the Supervising Auditors and Audit Teams will havetheir actual assumption and turn-over on the first to the lastweek of February 2013 and thereafter. All officers andemployees who will assume to their new assignment haveviolated the election ban. Thus, it is my humble opinion thatthe act of Atty. Mero in issuing the said memorandum acted inexcess of his authority or may have committed grave abuse ofdiscretion and/ orusurpation of officialfunction. x x x

-Carlito C. MatiasState Auditor III

Ourdeep concern and the subject matter of this letterare the Office Orders dated January 11, 2013 issued by theCOA officials concerned relative to the manning complement ofthe various agencies of the Commission on Audit in line withits Unified/Intergrated Audit Approach. Such office orderswere actually received by us only last January 15, 2013 butupon strict verbal orders or instructions of certain highlyplaced COA officials, we were made tofalsify the date of ourreceipt by directing us to make it appear that we all receivedthe questionable office orders on January 11, 2013 andassumed on the same date (January 11, 2013) although intruth and infact we have not yet assumed even up to now, inorder to circumvent, or pretend not violating, COMELEC


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Resolution No. 9385 which actually prohibits the transfer andmovement of personnel starting last January 13, 2013. Youcan very well verify this patent violation of law from all COAauditors involved and the records of various COA Central andRegional Offices concerned like COARegion IV.

-Concerned COAEmployees

On.January 14, 2013, (Monday), the officers and employeesof the Commission on Audit, Regional Office No. 10 received OfficeOrders Nos. 081, 082, 083, 084, 085, 086, and 087 with the subject- Manning complement under the revised structure of the officesunder Region 10, under COA Resolution No. 2012-019 datedDecember 20,2012.

The said orders dated January 11, 2013 reconstituted themanning complement of the offices name therein thereby re-assigning its officers and employees from their present assignmentas of January 11, 2013 to another assignment located on theirplaces mentioned therein.

It is informed that verbal instruction were given that allofficers and employees with an assignment within Cagayan De OroCity should assume office on January 14, 2013 while thoseassigned outside Cagayan De Oro City should assume office onJanuary 17, 2013.

Based on the above scenario, the transfer or movement ofpersonnel of the Commission on Audit, Regional Office No. 10 wasmade within the election period provided under COMELECResolution No. 9385, therefor the same is considered as prohibitedacts and the public officials concerned committed an electionoffense.

In consonance thereto the movement of the personnel sillegal and the same should not be effected within theelection period as prescribed. -The Auditors

The rules governing the prohibition on transfer or detailof employees in the civil service are clearly provided inComelec Resolution No 9518 thus:

SECTION1 Prohibited acts.A. During the election period from January 13 2013

to un 12, 2013 no public official shall, exceptupon prior written authority of the Commission:1. Make or cause any transfer or detail whatsoever

of any officer or employee in the civil service,including public school teachers. Transfer


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used in this provision shall be construed as anypersonnel movement from one governmentagency to another or from one department,division, geographical unit or subdivision of agovernment agency to another with or withoutthe issuance of an appointment.xxx

The elements of the election offense of transfer of officersand employees in the civil service 1 as defined and penalized inthe Omnibus Election Code are as follows:

1. The fact of transfer or detail of public officer oremployee within the election period as fixed by theCOMELEC,and

2. The transfer or detail was effected without priorapproval of the COMELECin accordance with itsimplementing rules and regulations.

Hence, any movement of personnel in the civil servicewhether it is denominated as transfer, detail or re-assignmentis covered by the prohibition. During the period set forth bythe COMELEC, the same cannot be implemented except withthe prior written authority thereof.

In the case of People vs. Reyes, the Honorable SupremeCourt ruled, thus:

Itought to be immediately obvious that Section 261 (h)of B.P. BIg. 881 does not per se outlaw the transfer of agovernment officer or employee during the election period. Tobe sure, the transfer or detail of a public officer or employee isa prerogative of the appointing authority. It is necessary tomeet the exigencies of public service sometimes too difficult toperceive and predict. Without this inherent prerogative, theappointing authority may not be able to cope with emergenciesto the detriment of public service. Clearly then, the transfer ordetail of government officer or employee will not be penalizedby Section 261 (h)of B.P. BIg. 881 if done topromote efficiencyin the government service. Hence, Section 2 of Resolution No.2333 provides that the COMELEChas topass upon reason forthe proposed transfer or detail of any officer or employee inthe civil service, including public school teachers, shall besubmitted in writing to the Commission indicating therein theoffice and place to which the officer or employee is proposed to

1 People v. Reyes 247 SeRA 328 [1995]


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This was reiterated in the case ofRegalado, Jr. vs. Courtof Appeals- when the Honorable Supreme Court ruled thatindeed, appointing authorities can transfer or detail personnelas the exigencies of public service require. However, duringelection period, as such personnel movement could be used forelectioneering or even to harass subordinated who are ofdifferent political persuasions, Section 261 (h) of the OmnibusElection Code, as amended, prohibits the same unlessapproved by the COMELEC.

The clear import of the case is that even if the transfer ofan employee is in the exigency of the service, there is still aneed for a prior written authority from the Commission beforethe same can be effected. What is being penalized is not thetransfer per se, the same being within the scope of authority ofthe appointing power, but transfer which is effected withoutthe needed authority from the Commission. Otherwise, it willbe very easy to circumvent the requirements of the law bysimply stating that the transfer of employee/ s was made in theexigencyof the service.

It can be inferred from the above that, it is the issuanceand implementation of the Order that is controlling. As longas the order directing any movement of officers andemployees in the civil service was issued and implementedoutside the election period the same is not covered by theprohibition On the other hand, even if the order was madebefore the onset of the election period but was onlyimplemented during the prohibitive period, the same iscovered by the prohibition.

It is worthy to note likewise that, it is the public officialwho causes the transfer or detail whatever of any officer oremployee in the civil service without any prior writtenauthority from the Commission who is being penalized bySection 261 (h) of the OEC. Whether or not the concernedofficer or employee complies with the said order is of nomoment as long as he is notified thereof.

The OfficeOrders which was issued on 11 January 2013reassigning about 8,000 employees of the Commission onAudit was likewise made effective on 11 January 2013. Bothdates fall before the onset of the election ban on transfer,which started on 13 January 2013, as provided in Comelec

2 G.R. No. 115962 February 15 2000


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Resolution No. 9581. We have attached herewith copies of theOfficeOrders issued byCOAfor your reference.

We have approved on 05 February 2013 the earlierrequest of the Commission on Audit for authority to transferits higher level employees, such as Assistant Commissioners,Directors, Supervising Auditors, etc.

Thus, we most respectfully submit that no prior approvalfrom the Commission on Elections is required for the transferseffected before 13 January 2013. These transfers caused bythe COAChairperson were made outside of the election ban.

However, the transfers effected after 13 January 2013needs prior approval from the Commission on Elections.

The present request of COAreveals sufficient compliancewith the requirements as stated above. Moreover, the reasonsoffered in support of the request is justified, it being statedtherein that the movement is being done in pursuance of theunified/package audit approach, which the COA recentlyadopted for implementation beginning January 2013, and tocarry out their audit focus during the election period on thethree (3) areas which they believe need vigilance and specialattention, namely: (i)election spending that could be sourcedfrom public money; (ii) fund transfers from one governmentlevel/ agency to another, that could be used for electionspending; and (iii) ghost employees , that could be used forelectioneering.

IN VIEW OF THE FOREGOING the Law DepartmentRECOMMENDS to:

1. Declare that the transferayreassigriments /designations of its employees effected before 13January 2013 are NOT covered by the ban, subjecthereof; and

2. APPROVE the present request of Chairperson MariaGracia M Pulido Tan covering the proposedtransfer / reassignment/ designation of its employeeseffectedafter 13 January 2013.


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Respectfully submitted.

~ATTY. ESMERALDA AMORA LAD~Director IV~

By virtue of the authority granted upon me underCOMELEC Resolution No. 9 ,pro lgated on 29 January2013, this request is hereby PPROVED DISAPPROVED.r

For the Commission:

S. BRILLANTYChC c o o :l 6 airman. , JR.

prohibited transfer

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