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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 228 -
IMPOSING THE PENALTY OF DISMISSAL FROM THE SERVICE WITH FORFEITURE OF
ALL BENEFITS UNDER THE LAW OF ASSOCIATE COMMISSIONER MARIANO A.
MENDIETA OF THE PROFESSIONAL REGULATION COMMISSION
This involves two (2) administrative cases
filed against Associate Commissioner Mariano A. Mendieta of the
Professional Regulation Commission for violation of Sec. 3 (a) and
(e) of the Anti-Graft and Corrupt Practices Act (Republic Act No.
3019).
The first case involves a complaint filed by Julio B. Francia, former
Chairman of the Professional Regulation Commission against respondent
Mendieta for his actuations relative to the application for a permit to
operate a school of Physical Therapy by the Fatima College of Medicine.
It appears that sometime in 1990, Fatima applied with the Department of
Education, Culture and Sports (DECS) for a permit to offer Physical
Therapy as a school course. Pursuant to Sec. 5 (c) of Republic Act
5680 which states: "No school, college or university shall be
authorized to offer courses in physical therapy or occupational therapy
without the favorable written recommendation of the Board", DECS
requested the Board of Physical and Occupational Therapy (BPOT) to make
its recommendation on whether or not to grant Fatima's application.
After twice inspecting and evaluating the facilities and proposed
program of the Bachelor of Science in Physical Therapy course of
Fatima, BPOT found that the school still lacked the necessary
preparation and organization to operate a school of Physical Therapy
and thus, did not recommend the granting of temporary permit for School
Year 1990-1991.
Despite the BPOT's recommendation, however, the DECS issued a temporary
permit valid for the year 1990-1991 authorizing Fatima to conduct the
1st and 2nd years of the Physical Therapy course.
Thereafter, BPOT issued an unnumbered and undated Resolution, series of
1990, stating among others:
xxx
"WHEREAS, considering that the facilities and program of the BSPT are
deficient and that the issuance of the temporary permit is in violation
of Sec. 5, of Republic Act No. 5680, the Board recommends that the
temporary permit No. 021 dated May 3, 1990 issued by DECS to the
College of Physical Therapy, Fatima College, be cancelled for the
protection of the students.
NOW, THEREFORE, after approval of this resolution and due to the
foregoing violation and non-compliance of the pre-requisite requirement
of the law, the Board requests the Commission to endorse the
cancellation of the temporary permit No. 021 issued to the Physical
Therapy Department of Fatima College.
Done in the City of Manila,
this 29th day of November, 1995.
(Sgd.) ROBERTO D. LIM, M.D.
Chairman
(Sgd.) TERESITA S. CASTOR
Member
ATTESTED:
(Sgd.) SALUD M. SAHAGUN
Board Secretary V
APPROVED:
JULIO B. FRANCIA, JR.
Commission Chairman
(Sgd.) HIPOLITA A. ORDINARIO
Commission Member
September 3, 1990
The aforequoted resolution was signed by Associate Commissioner
Hipolita A. Ordinario on September 3, 1990 and thereafter endorsed to
respondent Mendieta for his concurrence or dissent.
In the meantime, Dean Editha A. Tuason, M.D. of Fatima, wrote
respondent Mendieta informing him, among others, that some deficiencies
which were endorsed to her have "been dealt with and somehow
corrected". She ended the letter by saying that "we welcome any PRC
representative that you may wish to send at their most convenient time."
Instead of acting on the BPOT's undated and unnumbered Resolution,
respondent Mendieta issued a Memorandum to one of the lawyers in his
staff, Atty. Eduardo Sanchez, ordering him to inspect and investigate
the Physical Therapy Course of Fatima. After finding that Fatima
religiously complied with the suggestions of the BPOT and has expressed
its willingness to provide whatever additional facilities may be
required by the Board, Atty. Sanchez recommended that the college be
allowed to operate. On this basis, respondent Mendieta issued a
Memorandum to BPOT, to wit:
"After a study of the recommendation of the Board and the Investigation
Report of Atty. Sanchez, the undersigned is convinced that the Physical
Therapy Department of the Fatima College has complied with the
requirements of the Board.
xxx
IN VIEW OF THE FOREGOING, it is recommended that the matter be
considered closed."
In the present administrative complaint, complainant Julio B. Francia
charges that:
"(1)
(2)
(3)
(4)
(5)
(6)
"Sec. 3.
(a)
xxx
(e)
To counter the charges against him, respondent Mendieta set up the
following defenses:
''(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
After due investigation, the Presidential Commission Against Graft and
Corruption (PCAGC) in its Resolution dated June 7, 1995 made the
following findings:
"It appears that the main defense of respondent Mendieta is that in
accordance with the working arrangement within the PRC, the matter of
the BPOT's Resolution recommending the cancellation of the Fatima's
temporary permit is well within his assigned task, that is, the
Standard and Inspection Division. Pursuant to such arrangement, he
directed Atty. Eduardo Sanchez a member of his staff, to conduct the
ocular inspection of Fatima, on the basis of which he issued a
Memorandum to BPOT dated October 17, 1990 with the recommendation that
the matter be considered closed. Furthermore, he alleges that he could
not have suppressed the aforesaid BPOT resolution because after the
inspection report of Atty. Sanchez, he prepared a Memorandum for the
PRC recommending the disapproval of the BPOT Resolution (recommending
cancellation of permit) attaching thereto FATIMA's request for
inspection and the detailed report of Atty. Sanchez. This Memorandum
was allegedly given to Assistant Commissioner Ordinario who then
forwarded the same to the PRC Chairman Julio Francia. Thus, respondent
Mendieta claimed that he could not be held liable for the charges
alleged by complainant Francia.
The working arrangement alluded to is not denied. Such working
arrangement, however, should be taken in its proper context with Sec. 3
of the PRC Charter, (P.D. 223), which explicitly provides that the
Commissioner who shall be the Chairman of the Commission, and the
Associate Commissioners as members thereof shall, as a body, exercise
administrative, executive and policy making functions for the whole
agency. It is perceived by this Commission that the working
arrangement, as in any other administrative agency, is only for
expediency, i.e., to facilitate a more efficient and effective service
to the public. It, however, should not be interpreted as an exclusive
jurisdiction of a particular Commissioner who is no longer subject to
concurrence with or dissent by the other members. When the law states
"as a body", the same definitely pertains to the whole Commission. The
alleged working arrangement was internal among the Commissioners, and
could not in any way amend or modify the law.
The same law expressly provides that the Commission shall have the
power to review, coordinate, integrate and approve the policies,
resolutions, rules and regulations, orders or decisions promulgated by
the various Boards with respect to the profession or occupation under
their jurisdiction. . . . (Sec. 5, par. c, P.D. 223)
Respondent does not question the power of BPOT vested by R.A. 5680,
Sec. 5 (e) thereof, to study the condition affecting physical
therapy and occupational therapy, to study and examine facilities and
provide the basic curricula of any school, college or university
seeking permission to open or offering physical therapy and
occupational therapy program or course, and to require the employment
of qualified members of the faculty in such educational institution. He
could not have undermined the directive under R.A. 5680 that no school,
college or university shall be authorized to offer courses in physical
therapy or occupational therapy without favorable written
recommendation of the Board.
In the light of this legal background, the Commission finds respondent
Mendieta liable for the charges filed by the complainant Francia.
Respondent, who has been the PRC Associate Commissioner since December
1989, is well aware of the above-stated legal provisions pertaining to
the functions of the PRC vis-a-vis the Board of Physical Therapy
relative to the request of the schools to operate a physical therapy
course. He even admits in his Counter-Affidavit that "the BPOT's
finding and Resolutions will have to pass the approval of the
Commission" (par. 1, page 4, respondent's counter-affidavit, p. 78
records), such that he should have forwarded to PRC Chairman Francia
the unnumbered and undated BPOT's Resolution recommending the
cancellation of Fatima's temporary permit.
Evidence shows that the BPOT Resolution was forwarded to Assistant
Commissioner Hipolita Ordinario who after signing the same then sent it
to respondent on September 3, 1990 for his dissent or concurrence on
the matter. Instead, however, of giving his opinion thereto, and giving
it to PRC Chairman Julio Francia as mandated by P.D. 223 and R.A. 5680,
he directed Atty. Eduardo Sanchez, one of his lawyers, to conduct the
ocular re-inspection of Fatima School.
From the time respondent Mendieta received the BPOT Resolution from
Associate Commissioner Hipolita Ordinario on September 3, 1990, it
practically took him twenty three (23) days before issuing the
memorandum (September 26, 1990) to Atty. Sanchez who conducted the
ocular inspection and another five (5) days to write a Memorandum to
BPOT (not to the PRC as he should have done) to consider the matter
closed. In fact, in this period of the twenty three (23) days, he could
have immediately signified his concurrence or dissent to the BPOT
Resolution and forwarded the same to PRC Chairman Francia for the
latter's action on the same. The Commission notes that the directive
for ocular inspection (September 26, 1990) came after Dean Tuason's (of
Fatima) letter of September 19, 1990 to respondent."
xxx
Assuming arguendo that indeed his act of unilaterally directing the
ocular inspection is within his assigned task, the Commission finds no
reason why immediately after the inspection, he again did not inform
PRC of the result of said inspection, and of his action on the matter.
On the other hand, he wrote BPOT to consider the matter closed. There
can be no other interpretation but to consider the acts of respondent
Mendieta as favoring Fatima in his own singular way on the basis of a
decision rendered by him alone.
In further defending his action and to vindicate himself from such
liability, respondent now relies on his alleged Memorandum to the PRC
recommending the disapproval of the BPOT's unnumbered and undated
Resolution allegedly forwarded to then Associate Commissioner Hipolita
Ordinario and eventually to the PRC Chairman Julio Francia.
Evaluating the evidence and the records pertinent thereto, there is no
showing that such Memorandum exists. Respondent presented as witness
then Assistant Commissioner Hipolita Ordinario who testified the per
her logbook the aforesaid Memorandum was released to PRC Chairman Julio
Francia (Annex K-95, p. 335, Records). As further proof thereof,
respondent insists that all the attachments to the alleged Memorandum
are in the possession of complainant Francia appended to the instant
complaint.
Evidence, however, does not support the claim of respondent Mendieta
who under the rules of procedure must prove such allegation. The
logbook of Commissioner Ordinario on page 95 thereof, refers to a "1st
Endorsement with Inspection Report" and not to a Memorandum as claimed
by respondent. Secondly, Associate Commissioner Hipolita Ordinario's
supposed corroborative testimony contradicts her later opinion on the
matter, more particularly when she issued a note to Chairman Francia in
her own handwriting sometime in December 1990 that respondent Mendieta
should be required to comment on the letter-complaint of BPOT because
personally she did not have any knowledge of the inspection conducted
by Atty. Sanchez. In fact, she has already signed the recommendation of
the BPOT for the cancellation of the temporary permit of Fatima. Said
witness could not have written the December 1990 letter if indeed she
has already received or signed the alleged Memorandum of respondent
Mendieta in October 1990. On this aspect, evidence is insufficient to
support respondent's claim that he issued such a Memorandum.
Respondent Mendieta's act in unilaterally ordering Atty. Sanchez to
conduct an ocular inspection constitutes a violation of P.D. 223 and
R.A. 5680. It clearly appears from the circumstances in the instant
case that it was the letter of Fatima School dated September 19, 1990
which moved respondent Mendieta to issue the Memorandum for the conduct
of the ocular inspection of the school in clear violation of the
mandate of P.D. 223 and R.A. 5680. Sec. 5, par. (e) thereof which
provided that the BPOT shall have the power to study and examine
facilities of any school, college or university seeking permission to
open or offering physical therapy or occupational therapy program.
In effect, respondent allowed himself to be influenced and persuaded to
violate existing laws, i.e., P.D. 223 and R.A. 5680 by ordering Atty.
Sanchez to conduct the ocular inspection. This is violative of Sec. 3,
par. (a) of R.A. 3019 earlier quoted.
Respondent Mendieta is likewise liable under Sec. 3, par. (c) of
R.A. 3019 for giving a private party (Fatima) an unwarranted benefit,
advantage or preference while in the discharge of his official
administrative function through manifest partiality, evident bad faith
or gross inexcusable negligence. Thru respondent's questionable
actuations above-described, Fatima School of Physical Therapy was able
to continue to operate without the favorable written recommendation of
the BPOT as required by the law.
On the argument that respondent, thru his actuations, did not give any
party (FATIMA) any unwarranted benefit advantage or preference
considering that with or without the BPOT's recommendation for the
cancellation of the temporary permit, DECS still issued and renewed the
permit, is devoid of merit. Parenthetically, DECS may be liable for
issuing a permit to operate without the BPOT recommendation. But that
would be another case, distinguishable legally and factually from the
present case.
When respondent Mendieta issued his Memorandum dated October 17, 1990
recommending to BPOT that the matter be considered closed, he
completely deprived the BPOT of any procedural recourse respecting its
Resolution relative to the cancellation of the Fatima's Temporary
Permit. The law is very clear on the relative function of the PRC and
the BPOT, that is, PRC reviews, coordinates, integrates and approves
the resolutions of the various Boards with respect to the profession or
occupation under their jurisdiction (P.D. 223, Sec. 5, par. c). By
not forwarding the Resolution to PRC Chairman Francia, the legal
vinculum from the BPOT to the PRC was cut, and the PRC as a collegial
body had nothing more to review, coordinate, integrate and approve as
required by law. This is a consequence of respondent's illicit
actuations.
What then is the unwarranted benefit extended to Fatima by the
actuations of respondent Mendieta? Categorically, Fatima's temporary
permit was continued by DECS presumably unaware of the lack of the
requirement under R.A. 5680. Had respondent not acted in such manner
the BPOT Resolution would have been indorsed to the DECS by the PRC,
DECS would have been informed of the non-compliance with the
requirement of R.A. 5680 which would have precipitated the
investigation of the matter by DECS, and possibly, the cancellation of
the temporary permit. Public interest would have been protected. As it
is, Fatima continued to operate despite the lack of the favorable
written recommendation of BPOT as required by law."
Anent the second administrative complaint filed against respondent
Mendieta, this time by incumbent PRC Chairman Hermogenes Pobre, the
facts of the case are as follows:
"On June 7, 1993, the Board of Medicine (or Board, for brevity) of the
PRC issued a Resolution relative to the suspicious possible anomalies
in the conduct of the Physician Licensure Examinations given by the
Board in February 1993 wherein the names of the top ten (10) examinees
all came from one (1) school, that is, Fatima School of Medicine. It
resolved, among others, that the registration of all Fatima examinees
be withheld and for PRC together with a neutral body, to initiate an
investigation on the anomaly.
The said resolution was concurred in by respondent Mendieta with the
following suggestions:
xxx
"So in line with the proposed investigation of the Physician's
Licensure Examination, it is strongly suggested that the
above-mentioned anomalies be investigated together with the case at bar.
xxx
It is also suggested that the undersigned Commissioner be allowed to
sit in the panel assigned to investigate all these anomalies to assist
them in matters peculiar only to the Commission .”
Complainant alleges that respondent Mendieta on June 28, 1993 at 3:15
P.M. without stating the reason issued a Memorandum Order to the Chief
of the Registration Division of the PRC directing him to give
respondent a list of at least ten (10) examinees of the February 1993
Physician's Licensure Examinations, with the name of their schools, who
have already taken their oath and were registered and given their
licenses by the PRC. The following day, six (6) Fatima examinees filed
2 petition for certiorari with preliminary injunction to compel PRC to
allow them to take the physician's oath. The case was docketed as
Special Civil Action No. 93-66530 before the Regional Trial Court of
Manila attaching thereto as Annex C the list of examinees provided by
the PRC Chief of the Registration Division per Order of Mendieta. The
actuation of respondent Mendieta in issuing the Memorandum to the
Registration Division and securing the Certificate therefrom expedited
the delivery to the examinees' counsel documentary evidence against the
PRC and the Board when the counsel of said examinees could have by
himself obtained the certification. In exchange for the alleged
implicit collaboration and understanding between Fatima examinees and
respondent, the latter was not impleaded in the suits (civil and
criminal) subsequently filed by the examinees against PRC and the Board
(OMB- ADM-0-93-0434 and Special Civil Action No. 93-6653)) despite the
concurrence of Mendieta to the Board's Resolution dated June 7,
1993.
For his part, respondent Mendieta countered, that,
"(1)
(2) The certification was not used for an illegal purpose;
(3) The complainant's allegation that his suggestion to further
investigate the matter and he be allowed to sit in the investigation
panel was intended to help Fatima School of Medicine is a malicious
lie, for the NBI itself, in a related case, found nothing against him
and instead recommended the prosecution of Mr. Pobre; and
(4) The fact that the certification came into the possession of the
Fatima examinees is not probative of an illicit collaboration between
him and Fatima."
Evaluating the evidence presented, the PCAGC found respondent Mendieta
liable for violation of Republic Act 6713, to wit:
". . . it is not denied by respondent Mendieta that he ordered the
preparation of the list of ten (10) successful examinees from the
different schools by the PRC Registration Division which document was
utilized the following day as an Annex to the petition filed by the
Fatima examinees against PRC (without impleading respondent), and the
Board of Examiners. Although, the said act by itself cannot be
considered illegal, it, however, borders on impropriety on the conduct
of a public official.
Strictly speaking, respondent Mendieta's defense is proper to the
extent that the List or Certification is a public document access to
which is available to any party including himself and the counsel of
the examinees, thus, the latter could have by himself secured the
Certification. Considering, however, the position of respondent in the
PRC who has a moral sway over subordinate officials thereof, and the
act of the examinees in attaching the same as an Annex to their
petition for preliminary injunction against the PRC itself, it is
apparent that respondent unduly cooperated with them in filing the
case. This act of respondent vividly portrayed his role as dispenser
and peddler of undue patronage, precisely prohibited by R.A. 6713. For
this reason, this Commission holds the considered view that this
misconduct is a continuation, if not a part and parcel of the manifest
partiality earlier shown by respondent in favor of Fatima School."
In sum, the PCAGC found respondent liable for the charges in the first
and second administrative complaints and thus recommended respondent
Mendieta's dismissal from the service. In the words of the Commission:
" . . . respondent violated Sec. 3, pars. (a) and (e) of the Anti-Graft
and Corrupt Practices Act (R.A. 3019) earlier quoted. He also violated
Sec. 4, pars. (b) and (c) of the Code of Conduct and Ethical Standards
for Public Officials (R.A. 6713), which provides as follows:
(b) Professionalism. — Public officials and employees shall perform and
discharge their duties with the highest degree of excellence,
professionalism, intelligence and skill. They shall enter public
service with utmost devotion and dedication to duty. They shall
endeavor to discourage wrong perceptions of their roles as dispensers
or peddlers of undue patronage.
(c) Justness and Sincerity. — They shall at all times respect the
rights of others, and shall refrain from doing acts contrary to law,
good morals, good customs, public policy, public order, public safety
and public interest . . . .
Sec. 11. par. (a) thereof further provides that:
"A violation thereof shall be punished with a fine not exceeding one
(1) year, or removal depending on the gravity of the offense after due
notice and hearing by the appropriate body or agency."
and the same Sec. 11. par (b) thereof provides:
"Any violation thereof proven in a proper administrative proceeding
shall be sufficient cause for removal or dismissal of a public official
or employee, even if no criminal prosecution is instituted against him."
As can be seen above, the proper penalty for herein respondent is
removal from Office.
WHEREFORE, in view of the foregoing, the Commission hereby resolved and
so recommends to the Office of the President, that respondent Mariano
Mendieta, Associate Commissioner, Professional Regulations Commission,
be DISMISSED from the service.
SO RESOLVED."
After evaluating the evidence on record, this Office concurs with the
findings of the Commission and so adopts its recommendation for the
dismissal of respondent Mendieta with the additional penalty of
forfeiture of all benefits under the law.
WHEREFORE, as recommended by the Presidential Commission Against Graft
and Corruption, respondent Associate Commissioner Mariano A. Mendieta
of the Professional Regulation Commission is hereby DISMISSED from the
service with forfeiture of all benefits under the law for violation of
Sec. 3 (a) and (e) of Republic Act 3019 and Sec. 4 (b) and (c) of
Republic Act 6713.
Let the Office of the Ombudsman be furnished a copy of this
Administrative Order for the investigation of the criminal aspect of
this case.
SO RESOLVED.
DONE in the City of Manila,
this 29th day of November in the year of Our Lord, Nineteen
Hundred and Ninety-Five.
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