2nd Subject Report-Temporary Vacancies.pptx

TEMPORARY
VACANCIES
CHAPTER
TEN

Separation of Powers
1272. Explain the principle of separation of powers.
The principle of separation of powers odains that each
of the three great branches of government has exclusive
cognizance of and is supreme in matters falling within its own
constitutionally allocated sphere (Province of Pampanga vs.
Romulo, G.R. No. 195987, January 12, 2021; Santiago vs.
Guingona, G.R. No. 134577, November 18,1988).
1273. Explain the powers of the tree branches of the
government.
The legislative branch of the government, through
Congress, makes law. The executive branch of the government,
through the president, enforces laws. The judicial branch of the
government, through the court, interprets law (Belgica vs.
Ochoa, G.R. No. 208566, November 19, 2013).

1274. When is there a violation of the principle of
separation of powers?
There is a violation of the separation of powers
principle when one branch of government unduly encroaches
on the domain of another (ibid.).
1275. Does the doctrine of separation of powers apply to local
governments?
Yes. The doctrine applies to local governments. The powers
of the local sanggunian and the mayor are delineated and enumerated
separately (Mathay vs. CSC, G.R. No. 124374, December 15,1999).

1276. Is there a union of legislative and executive powers
under the Local Government Code of 1991?
No. Such union under B.P. Blg. 337 has been disbanded
by the R.A. No. 7160. Either department now comprises different
and non-intermingling official personalities to ensure better
delivery of public service and provide a system of check and
balance between the two (Gamboa, Jr. vs. Aguirre, Jr., G.R. No.
134213, July 20,1999.
1277. Does the sanggunian, as the legislative organ of the
local government unit, excercises the power of the purse?
Yes. The sanggunian excercises the power of the purse
In much the save way as the Congress does at the national level
(Verseles vs. COA. G.R. No. 211553, September 13,2016).

Post Enactment Interventions Legislator
1278. May Congress, through a law empower any of tis
members to play any roll in the implementation of the law?
No. From the moment the law becomes effective any
provision of law that empowers Congress or any of its member to
play any role in the implementation or enforcement of the law
violates the principle of separation of powers and is thus
unconstitutional (Belgica vs. Ochoa, G.R. No. 208566, November
19,2013
1279. Enumerate the post-enactment inventions by Congress
considered not realated to functions of congressional oversight.
Post-Enactment measures which govern the areas of project
identification, fund release, and fund realignment are not related to
function s of congressional oversight. These duties belong to the
sphere budget execution (ibid.).

Post Enactment Interventions Legislator
1280. What is covered by the phase of budget execusion?
The phase of budget execution vobers the various
operational aspects of budgeting and includes the evaluatiom of
work and financial plans for individual activities, the regulation and
release of funds as well as tother related activities that compromise
the budget execution cycle (ibid.)
1281. What is the undermining effect on local autonomy caused
by post-enactment authority conferred to the national legislator?
National legislators can bypass local development councils
and initiate projects on their own. They can even take sole credit of
their execution. This weakens the infrastructure, planning, and
coordination efforts of the government (ibid.).

ENFORCEMENT OF ORDINANCE
1282. A city ordinance is being assailed for being invalid and
unconstitutional. Does the city mayor have the choice whether to
enforce or not to enforce the subject ordinance.
It is a ministerial duty of the mayor to enforce an ordinance as long
as it has not been repelled by the sanggunian or annulled by courts (SJS vs.
Atienza, G.R. No. 156052, March 7, 2007, citing section 45, R.A. No. 7160).
He has discretion to decide on whether or not to implement the local
ordinance (DILG Opinion No. 97, s. 2010). Government officials from the
highest to the lowest are creatures of the law and are bound to obey it
(Dimaporo vs. Mitra, G.R. No. 96859, 15 October 1991, 202 SCRA 779).
1283. May a municipal ordinance be subjected to collateral attack?
No. Public policy forbids collateral impeachment of legislative acts
(San Miguel Brewery. Inc. vs. Magno, 21 SCRA 293).

1284. Does the mayor have the power to unilaterally suspend the
implementation of an ordinance?
No. He is not empowered under the Local Government Code or any
other statutes to unilaterally suspend the implementation of an ordinance. To
allow him to do so would be tantamount to giving premium to an invalid
encroachment of the legislative power of the sanggunian (DILG Opinion No.
06, s. 2005).
1285. Can the mayor be held personally liable if his actions were done
pursuant to an ordinance, which at the time implementation was yet to
be invalidated?
No. Local ordinances are presumed to be valid unless and until
the courts declare the contrary in clear unequivocal terms (Demaala vs.
COA, G.R. No. 199752, February 17, 2015).

1286. The municipal mayor refused to implement an ordinance on the
ground that it was irregularly enacted during the time of his
predecessor. He argues that the ordinance was enacted without the
compliance of the three- reading rule. Was his refusal justifiable?
No. Unless judicially held otherwise, the ordinance enjoys
presumption of validity. Thus, an incumbent mayor is duty-bound to
implement it (Mendoza vs. De Guzman, G.R. Nos. 156697-98, October 9,
2007).
1287. What are the legal remedies to compel the mayor to implement the
ordinance?
An action for mandamus before a court of law is proper (DILG
Opinion No.97 s. 2010).

1288. What is the liability of the mayor if he refuses without justification
to implement the ordinance?
His refusal may result to a liability for dereliction/neglect of duty. A
case may be filed before the Office of the Ombudsman (ibid.).
1289. Is the city mayor empowered to issue an executive order under the
Local Government Code?
Yes. He can exercise such power for the purpose of the faithful and
appropriate enforcement and execution of laws ad ordinances passed by the
sanggunian (DILG Opinion No. 06 s. 2005, citing Section 455 [b] [2] [iii], R.A.
No. 7160.

DESIGANTION OF OFFICER IN-CHARGE
1290. Distinguish an Officer-in-Charge (OIC) from an Acting Mayor.
The term “Office-in-Charge” refers to the local official designated by the Local Chief
Executive in writing to carry out specific functions during his three-day absence.
The term “Acting Mayor” refers to the local official (either the Vice Mayor, the highest
ranking sanggunian member) who assumes the Office of the Local Chief Executive by operation of
law in view of the temporary vacancy in the latter’s office (DILG Opinion No. 2, s. 2002, citing
Section 46 [a] and [d], R.A. No. 7160).
1291. Section 46 (e) of the Local Government Code says: “Except as provided above, the local
Chief Executive shall in no case authorize any local official to assume the powers, duties, and
functions of the office, other than the vice-governor, the city or municipal vice mayor, or the
highest ranking Sangguniang barangay member, as the case may be. “What is meant by the
place except as provided above?” [E]xcept as provided above”?
The phrase refers to the power of the local Chief Executive to designate an Officer-in-
Charge under Section 46 (d) of the Local Government Code (DILG Opinion No. 80, s. 2004).

1292. When is it appropriate to designate an OIC to the office of
the Local Chief Executive?
An OIC to the office of the Local Chief Executives may be
designated only when the latter is travelling within the country but
outside his territorial jurisdiction for a period not exceeding three (3)
consecutive days (DILG Opinion No. 99, s. 2021, citing Section 46
[a], R.A. No. 7160).
1293. What are the requisites for a valid resignation of an OIC?
The requisites are as follows: (a) the designation must be in
writing; (b) the designation must contain the specific powers and
functions granted to the OIC; (c) the duration of the designation shall
be for three (3) days and (d) the travel of incumbent Local Chief
Executive is within the country but outside his jurisdiction (DILG
Opinion No. 92, s. 2001; DILG Opinion No. 118, s. 2010).

1294. May the mayor designate an OIC who may not be the vice
mayor?
Yes. He may designate an OIC, who may not be the vice
mayor. However, such power has limitation since the vice mayor
assumes the office of the mayor on the fourth day, by operating of
law, regardless of who was designated as OIC (DILG Opinion No.
41, s. 1998).
1295. Under Section 46 (c) of the Local Government Code, the
duration of the designation of an OIC shall not exceed three (3)
consecutive days. What is meant by the phrase “three (3)
consecutive days”?
The phrase ‘three (3) consecutive days “should be taken to
mean three (3) calendar days. Calendar days include Saturdays,
Sundays, and non-working holidays (DILG Opinion No. 171, s. 2002).

1296. Can the designation of an OIC exceed three (3) days?
No. If the designation exceed three (3) days the vice
mayor automatically assumes the duties, powers, and functions of
the Office of the Mayor on the fourth day. The effectivity of the
designation is only for three (3) consecutive days (DILG Opinion No.
120, s. 2002).
1297. Can the mayor designate several officials as an OIC for
each for three days?
No. Even if the designation is made to different persons to
serve successively, the same is valid and effective only for three (3)
consecutive days. On the fourth day, it automatically ceases and the
vice mayor automatically assumes as acting mayor (ibid.).

1298. What is the efficacy of the designation for ten (10) days?
It is valid and effective only for three (3) consecutive days
and on fourth day, it automatically ceases to be effective (DILG Opinion
No. 80, s. 2002).
1299. The mayor designated his administrator as OIC until his
return. What is the efficacy of the designation?
The designation is effective only for three (3) consecutive
days not withstanding that it seems to be without a period. Upon
failure of the mayor to return to his station on the fourth (4th) day, the
vice mayor on such day, shall temporarily assume as acting mayor
(DILG Opinion No. 80, s. 2004).

1300. The punong barangay went on an out of town for two days. The punong barangay
failed to designate an OIC. May the highest ranking Sangguniang barangay member take
over and perform the functions and duties of the punong barangay?
No. Only in the event of failure and refusal of the punong barangay to designate an OIC
shall the highest Sangguniang barangay member can assume the office of the punong barangay
on his fourth day of absence (DILG Opinion No. 58, s. 2021).
1301. Is there a need of any order or appointment from
competent authorities before the vice mayor can assume as
acting mayor on the fourth day absence of the mayor?
No. Such assumption is automatic and by operation of law
without need of any order or appointment from competent authorities

TRAVEL ABROAD
1302. Can the mayor designate an OIC when he travels abroad?
No. An OIC of the office of the Local Chief Executive can only
be designated if the incumbent Local Chief Executive is travelling within
the country but outside his territorial jurisdiction (DILG Opinion No. 118,
s. 2010).
1303. The Local Chief Executive travels abroad with or without an
approved leave of absence and travel authorization. Who shall
assume her post while she is on travel abroad?
Since the temporary vacancy is due to Local Chief Executive’s
travel abroad with or without any approved leave of absence and travel
authorization, the vice local chief executive automatically assumes the
former’s post in acting capacity on the first day of absence of the Local
Chief Executive (DILG Opinion No. 25, s. 2004).

LEAVE OF ABSENCE
1304. The mayor left his station under an approved leave of
absence. The mayor designated his municipal administrator
as an OIC mayor. Was the designation consistent with the
law?
No. Since the mayor’s absence was due to leave of
absence, the vice mayor automatically succeeds as acting
mayor (DILG Opinion No. 44, s. 2005).

PREVENTIVE SUSPENSION
1305. The preventive suspension of the punong
barangay has been predetermined to exceed thirty (30)
working days. May an OIC be designated to the office
of the punong barangay?
No. Section 46 (a) of the Local Government Code
applies instead of Section 46 (c) of same Code. The
highest ranking barangay kagawad sdhall automatically
become the acting punong barangay once the punong
barangay serves his preventive suspension (DILG Opinion
No. 171, s. 2002).

REFUSAL TO BE DESIGNATED
1306. May the vice mayor refuse to be designated as
OIC mayor?
No. He is mandated to perform a duty and he is
under obligation to abide by the same, otherwise he can be
held liable for breach of duty (DILG Opinion No. 19, s.
2004).
1307. May the vice mayor refuse to assume as acting
mayor after lapse of three days or on the fourth day of
absence of the mayor?
No. He is mandated by to assume office under
Section 46 (d) of the Local Government Code (ibid.).

POWERS OF OFFICER IN-CHARGE
1308. What is meant by “discretion” when applied to public functionaries?
It means a power or right conferred upon them by law or acting officially,
under certain circumstances, uncontrolled by the judgement or conscience of
others (Nepomuceno vs. Duterte, UDK No. 16838, May 11, 2021).
1309. Distinguish a discretionary duty from a ministerial duty.
The two may be distinguished from each other in the following ways:
(a) A duty is discretionary if the officer is allowed to determine how and
when it is to be performed and to decide this matter one way or the other and be
right either way. It is not susceptible to delegation.
(b) A ministerial duty is one that requires neither the exercise of official
discretion nor judgement. It is mechanical act that can be delegated (Lespo vs.
People, G.R. No. 188487, February 14, 2011).

1310. Explain the scope of the powers to be exercised by an OIC mayor.
Powers to be exercised by the OIC mayor are limited only to those
expressly authorized by the mayor in writing. Only ministerial functions are
delegable (DILG Opinion No. 171, s. 2002).
1311. Can the mayor delegate the power to solemnize marriages to an OIC?
No. It cannot be delegated (DILG Memorandum Circular No. 97-150).
The OIC, notwithstanding the investment of such power in the authorization
cannot solemnize marriage (DILG Opinion No. 41, s. 1998).
1312. Can the mayor delegate to the OIC the power to approve ordinance of
your resolution?
No. Approval of an ordinance or resolution is not a ministerial act but a
discretionary one as it requires not only a flourish of pen but an application of
judgement after meticulous analysis and intelligence as well (De Los Reyes vs.
Sandiganbayan, 281 SCRA 631 [1997]).

1313. Can the mayor delegate to the OIC the power to veto an ordinance?
No. The grant of the veto power confers authority beyond the simple
mechanical act of signing an ordinance or resolution (De Los Reyes vs.
Sandiganbayan, 281 scra 631 [1997]).
1314. Can an OIC MAYOR ISSUE TRAVEL ORDERS?
He can issue travel orders when it is specified in the authorization

OFFICER-IN-CHARGE AS PRESIDING OFFICE
1315. The governor designated his vice governor as OIC. Can the vice governor, now the OIC,
continue to preside the legislative session?
Yes. He can still preside. The powers and functions of the OIC local chief executive are
limited only upon the specifications of the local chief executive. The inviolability of the principle of
separation of powers still holds true (DILG Opinion No. 03, s. 2012).

ACTING LOCAL CHIEF EXECUTIVE
1316. When does a temporary vacancy in the offices of the
local chief executive arise?
It arises in the following physical or legal reasons
such as but not limited to, (1) leave of absence, (2) travel
abroad; and (3) suspension from office (DILG Opinion No. 44,
s. 2005, citing Section 46 [a], R.A. No. 7160 and Article 83 [d]
[1], IRR, R.A. No. 7160).
1317. Are the grounds for temporary incapacity in the
office of the local chief executive limited to leave of
absence, travel abroad and suspension from office?
No. Section 46 (a) of the Local Gocernment Code
uses the phrase, “such as, but not limited to” which implies
other similar cases such as physical illness or detention of
local chief executive (DILG Opinion No. 22, s. 2014; DILG
Opinion No. 18, s. 2013).

1318. The mayor is now fugitive from justice. What gives
rise to his continued absence in the office of the mayor
and non-performance of his duties as local chief
executive?
In view of the mayor’s temporary incapacity to
perform his duties for physical and legal reasons, these arises
a temporary vacancy in the office of the mayor. By operation of
law, the vice mayor shall automatically perform the powers and
performs the duties and function of the municipal mayor in an
acting capacity (DILG Opinion No. 09, s. 2019).
1319. The mayor has been detained. Is it necessary that a formal
designation from higher authorities be issued before the vice
mayor can assume the office of the mayor in an acting
capacity?
It is necessary. The designation is mere surplusage. The
vice mayor assumes the office of the mayor by operation of law

1320. The mayor filed an application for leave. The application was denied. Despite the denial of
her application, the mayor did not report to her office for more than three (3) days. Is there a
need for a designation of the vice mayor before he can exercise the powers and perform the
duties and functions of the local chief executive in acting capacity?
No. There is no need for such designation. The vice mayor automatically exercises the
powers and perform the duties and functions of the local chief executive except the power to appoint,
suspend, or dismiss employees which can only be exercised if the period of incapacity exceeds thirty
(30) working days (DILG Opinion No. 56, s. 2018). No order/authorization from DILG is necessary to
make the assumption of vice mayor as the acting mayor effective (DILG Opinion No. 22, s. 2012).
1321. The punong barangay is suspended from office. May the No. 1 barangay kagawad refuse
to assume by succession the temporarily vacated office of the punong barangay?
No. Succession is a duty and not only a matter of right. If he refuses to assume by
succession, he can be charged of dereliction of duty (DILG Opinion No. 86, s. 2007)

MULTIPLE VACANCIES
1322. What rule applies in case of temporary
vacancies in both offices of the mayor and
vice mayor?
The rule on succession in cases of
permanent vacancies can be applied in cases of
temporary vacancies where the Local Government
Code is silent (Menzon vs. Petills, G.R. No. 90762,
May 20, 1991, 197 SCRA 251). Hence, the first and
second ranking sangguniang panlungsod members
can assume office as acting mayor and acting vice
mayor, respectively (DILG Opinion No. 04, s. 2007).

1323. Do ex-officio members have successional
right in case of temporary vacancy in the office
of the local chief executive?
No. Ex-officio members do not have ranks.
They have no successional rights (DILG Opinion No.
07, s. 2006).
EX-OFFICIO MEMBERS AND
SUCCESSIONAL RIGHTS

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