SC: Go prosecute brgy. captain for garbage fees

The Supreme Court has directed the Office of the Ombudsman (Visayas) to file before the proper court the necessary information for violation of Article 213(2) of the Revised Penal Code (RPC) or Illegal Exactions against a barangay captain in Cebu for unauthorized imposition of garbage collection fees.

In a 21-page decision promulgated on February 20, 2019, the Court’s Third Division, through the ponencia of Associate Justice Marvic M.V.F. Leonen, found grave abuse of discretion on the part of Graft Investigation and Prosecution Officer I Michael M. Mernado, Jr. of the Office of the Ombudsman (Visayas) for dismissing the charge against Lucresia M. Amores, Barangay Captain of Marigondon, Lapu-Lapu City, Cebu for violating Article 213(2) of the RPC. Thus, it set aside the assailed February 20, 2015 Resolution and September 29, 2015 Order of the Ombudsman Visayas.

The case stemmed from the complaint of Carlos L. Reynes, manager of Blue Reef Beach Resort Cottage and Hotel, who alleged in his affidavit-complaint that the Barangay of Marigondon, without any ordinance or statute, or any other regulation authorizing its collection and despite the City of Lapu-Lapu already collecting its own garbage fees, increased the monthly garbage collection fees from Php1,000 to Php2,000.

When questioned, Amores did not offer any explanation and merely told Reynes’ wife, Dr. Sonia Beth Reynes, that the collection of Php2,000 was “final and unalterable.” Left with no alternative, Reynes relented to pay Php2,000 monthly from August 16, 2011 to April 12, 2013, with the official receipts indicating the collected fees as a “donation.” On June 3, 2014, the Barangay stopped collecting the resort’s garbage and was told this was ordered by Amores. This was also allegedly upon instigation by Kagawad Maribel Hontiveros of Marigondon, Lapu-Lapu City, Cebu as she was offended by an incident from two days prior where she tried to enter the resort with some companions but was not immediately allowed to enter and was instead asked to present an identification card per the resort’s standard procedure.

In a meeting between Reynes and Amores, Amores maintained that her decision to stop collecting the resort’s garbage was final, and said that it was “bulky,” and it was in keeping with a July 18, 2007 Memorandum issued by the Lapu-Lapu City Administrator. Amores and Hontiveros also faulted the resort for failing, allegedly unlike other resorts, to segregate their garbage or use a garbage depositary situated along a public road.

Reynes filed a Complaint for Illegal Exactions, penalized under Article 213(2) of the RPC, and a violation of Section 48 of Republic Act (RA) No. 9003 or the Ecological Solid Waste Management Act of 2000 with the Office of the Ombudsman (Visayas). He noted in his complaint the resort’s waste segregation, processing system, and facilities.

Graft Investigation and Prosecution Officer I Atty. Mernado of the Ombudsman (Visayas), however, dismissed Reynes’ complaint, noting that the allegations against Amores and Hontiveros do not fall under the 16 prohibited acts in Sec. 48. Moreover, Mernado gave a one-paragraph explanation in dismissing the charge of illegal exactions stating that Reynes’ failure to present the ordinance on garbage fees shows lack of evidence that Amores demanded payment of sums different from or larger than that authorized by law; that the payments made appear to be donations as reflected in the receipts issued, which Reynes did not bother to question; and that Reynes failed to show any proof that the donation he gave to the barangay is prohibited by law. Atty. Mernado likewise denied the Motion for Reconsideration causing Reynes to seek for relief with the SC.
The High Court held that Atty. Mernado’s one-paragraph reasoning is “an error that is as grievous as it is mind-boggling.” It further held that Reynes’ position is precisely that there was no ordinance or any other regulation that enabled the levying of garbage collection fees. “To demand that he produce one such ordinance was a farcically futile exercise. Atty. Mernado would have had him go on a fool’s errand. Lest Reynes reveal himself to be untruthful and admit that there was indeed an enabling ordinance, there was no other reasonable outcome than for him to be unable to present such an ordinance.”

The High Court said: “A public prosecutor who does not merely disregard but even grossly misinterprets to the point of distorting evidence and the Revised Penal Code’s standards for liability, turning a blind eye to palpable indicators of criminal liability, commits grave abuse of discretion.”

The Court also pointed out that any inquiry on the existence of probable cause to prosecute for illegal exactions as penalized under the RPC should demonstrate the following elements: (1) the offender is a public officer who is “entrusted with the collection of taxes, licenses, fees, and other imposts”; and (2) he or she engages in any of the specified acts or omissions under Article 213(2). It highlighted that as Barangay Captain, Amores’ engagement with solid waste management was official, direct, and unequivocal, and this involvement spanned all dimensions of solid waste management, including the marshalling of resources, financial or otherwise. Her functions were sufficiently broad as to encompass facilitating the levying of charges for services rendered by the Barangay. The Court noted it is then not difficult to see how Amores could have used her office as an artifice for “demanding…the payment of sums different from or larger than those authorized by law.” The Court emphasized that this is neither the first instance that the Court has considered the potential liability for illegal exactions of a public officer, whose functions do not explicitly include the collection of fees and charges.

The Court, however, found no probable cause to indict Hontiveros for illegal exactions: “it does not appear that Hontiveros herself acted in concert with Amores in demanding and facilitating inordinate collections. It also does not appear that she, by herself or through someone acting on her instruction, collected or received the amounts delivered by [Amores].” Nonetheless, the Court underscored that the complaint filed by Reynes before the Office of the Ombudsman (Visayas) was not exclusively a criminal complaint but also an administrative complaint for gross misconduct. The charge of gross misconduct embraces the imputations against Hontiveros that she abused her position and influence to induce the cessation of the garbage collection services to the resort. Still, the High Court held, “the affirmation of the dismissal of the criminal complaint against Hontiveros is without prejudice to the proper disposition of the administrative aspect of the complaint against her.”

Finally, the Court made it clear that this is not yet adjudication on the merits made after the rigors of a full-blown trial. “The parties are free to expound their claims and to adduce their evidence. Amores may very well have an explanation that accounts for her silence, or she may even have actual proof that she responded. However, even as this Court makes no definitive findings on guilt or innocence in this Decision, it is tasked with weighing the evidence adduced thus far and appraise the propriety of Atty. Mernado’s conclusions. The allegations and proof available for this Court’s perusal weigh more heavily in [Reynes’] favor. With this state of affairs, this Court is constrained to maintain a well-founded belief that the crime of illegal exactions has been committed, and that Amores is probably guilty and should be held for trial.” (G.R. No. 223405, Reynes v. Office of the Ombudsman (Visayas), et al., February 20, 2019)