DILG OPINION NO

DILG OPINION NO. 12 S. 1999

28 January 1999

MR. MARVIN M. NOSCAL

Sangguniang Bayan Member

Lopez, QuezonRe:

(1)Whether the actions/measures taken up and approved by the Municipal Development Council, its Executive Committee and the PBAC, are valid if its composition are not in conformity with the mandate of the Local Government Code.

(2)May a municipal employee be allowed to be a representative of an NGO in local special bodies.

(3)Whether Article 63 (b) and Article 183 (1) (4) of the IRR of RA 7160 providing that NGOs in PBAC must come from those NGOs represented in Local Development Councils are not in conflict with Article 64 (d) of the same IRR which prohibits an organization or a representative thereof to be a member of more than one special body.

Dear Sir:

In reply to your above-captioned first query, please be informed that the acts or measures taken up by the PBAC or the Municipal Development Council and its Executive Committee can still be given legal force and effect for having been made by de facto officers. A de facto officer is one who has the reputation of being the officer he assumed to be and yet is not a good officer in point of law (The Law on Public Officers, de Leon and de Leon, Jr., 1997, p. 107). For reason of public policy and in order to protect public interest, acts of de facto officers should be sustained as valid. This is, of course, without prejudice to the possible administrative and criminal sanctions that may be imposed against those responsible for the irregularity.

- 2 -

In reply to your second-captioned query, please be informed that there is no law that prohibits a municipal employee to be a representative of an NGO as long as said municipal employee is a member thereof. The prohibitions under Section 7, Article IX-B of the Constitution, and Section 94 of the Local Government Code do not apply since they pertain to the appointment of an appointive employee in any capacity to another public office. A public office has been defined as the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the appointing power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public (The Law on Public Officers, de Leon and de Leon, Jr., 1997, p. 1). Consequently, representation in an NGO cannot come within its coverage.

In reply to your above-captioned third query, please be informed that there is actually no conflict because while Article 64 (d) provides for the general rule, Articles 63 (b) and 183 (1) (4) provides for the exception insofar as local PBAC is concerned.

Hope to have enlightened you on the matter.

Very truly yours,

JESUS I. INGENIERO

Assistant Secretary

LS:33/Merle/La

copy furnished:

The MLGOO

DILG Municipal Field Office

Lopez, Quezon

The Regional Director

DILG Regional Office No. IV

Calderon Bldg., EDSA

Diliman, Quezon City