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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 393 -
DISMISSING FROM THE SERVICE MACORRO MACUMBAL AND ROBERTO DE VERA,
REGIONAL EXECUTIVE DIRECTOR AND REGIONAL TECHNICAL DIRECTOR,
RESPECTIVELY, OF DENR REGION IX, ZAMBOANGA CITY, FOR GRAVE MISCONDUCT,
DISHONESTY, GROSS NEGLECT OF DUTY, INEFFICIENCY, INCOMPETENCE IN THE
PERFORMANCE OF OFFICIAL DUTIES AND CONDUCT PREJUDICIAL TO THE BEST
INTEREST OF THE SERVICE
Before this Office are administrative
complaints filed against respondents Macorro Macumbal and Roberto de
Vera, Regional Executive Director and Regional Technical Director,
respectively, of DENR Region IX, Zamboanga City for alleged grave
misconduct, dishonesty, gross neglect of duty, inefficiency,
incompetence in the performance of official duties and conduct
prejudicial to the best interest of the service.
In view of the gravity of the charges leveled against them, respondents
were formally charged and placed under preventive suspension for ninety
(90) days while the charges against them were investigated and heard.
It should be noted that respondents are presidential appointees.
Respondent Macumbal was charged for approving the Integrated Annual
Operation Plan (IAOP) ofri Timber Co., Inc. (Siari), on April 29, 1995
even before the members of the Regional Review Committee could affix
their signatures on May 11, 1995, which appeared as wanton disregard of
the basic requirements before a licensee could resume operations in
second growth forests prescribed under existing forestry rules and
regulations, particularly DENR Administrative Order (DAO) No. 24,
Series of 1991. Macumbal was also charged with gross misrepresentation
by claiming that the temporary allowable cut of 9,560 cu. m. granted
tori was based on a 10% timber inventory previously conducted in the
area despite knowledge that the composite forest inventory team created
under DENR Special Order No. 564 dated May 22, 1995 has yet to complete
its field work.
Both respondents, Macumbal and De Vera, were further charged for
failing, as accountable officers, under DAO No. 12, Series of 1992, to
exercise adequate supervision of the logging operations ofri, thereby
abetting the gross violations committed by said company, such as: (1)
cutting of almaciga which is a prohibited species; (2) cutting timber
before approval of IAOP; (3) cutting undersized trees; (4) farming-out
its license to Vicmar and Findlay-Miller; (5) failure to employ a
registered forester on full time basis; and (6) violations of existing
forestry laws and regulations.
For his defense, respondent Macumbal in his Answer, which facts were
reiterated in his direct testimony, alleged that he had been in the
government service for the last thirty one (31) years as Forester,
Assistant District Forester, Regional Director and lastly Regional
Executive Director of Region IX up to the time of his suspension.
Respondent also claims to hold a Bachelor of Science in Forestry and
Masteral Degree in Forestry from the University of the Philippines at
Los Baños.
Respondent Macumbal stated in his Answer that sometime in February
1995, the Office of the DENR Secretary through Atty. Cedrick Ruiz
informed him that then Secretary Angel C. Alcala gave him authority to
grant Temporary Allowable Cut (TAC) of not more than Ten Thousand
(10,000) cubic meters of timber tori. Allegedly, the same respondent
countered with the fact that there was no such company in the region.
Furthermore, he allegedly told Ruiz that he could not implement any
action unless ordered by Secretary Alcala in black and white.
Macumbal, too, claimed that after an alleged conversation over the
phone and apprehensive over the repercussion of allowing a nine (9)
year idle TLA to resume operations, especially at a time nearing
elections, respondent looked for the files ofri and discovered a
Memorandum dated November 21, 1994 of then Secretary Angel Alcala
informing the OIC-RED of DENR, Region IX, Zamboanga City, to the
effect, that TLA No. 185 ofri was deemed VALID and SUBSISTING. He
subsequently received the March 1, 1995 memorandum of Secretary Alcala
giving him an authority to grant Temporary Allowable Cut (TAC) tori of
not more than 10,000 cubic meters, pending the conduct of a 10%
inventory over residual forest Block I inside the TLA area of the
Company, subject to certain conditions. To respondent Macumbal, his
understanding of Condition No. 3 was that it referred to the Regular
Annual Operations Plan required of TLA holders to cover yearly
operations and not a plan for the Temporary Allowable Cut (TAC). It
could not refer to any other plan because a subsequent reading of the
other conditions, like Condition No. 1, specifically authorized a TAC
to be good only for six (6) months and Condition No. 2 requires that
the TAC should form part of the sustained annual allowable cut (AAC)
based on the result of the ten percent (10%) inventory. Besides, the
IAOP under Condition No. 3 has yet to be prepared, since the Inventory
Team created by the Office of the Secretary had not yet completed its
inventory.
Anent the charge of approving the IAOP ofri on April 29, 1995 and even
before the members of the Regional Review Committee could finally affix
their signatures on the Approval Sheet of the IAOP on May 11, 1995,
respondent Macumbal advanced the position that what he approved was not
the Integrated Annual Operations Plan or IAOP of the company but a
Temporary Integrated Operations Plan or TIOP. To bolster his defense,
he likewise claimed that the TIOP was different from the IAOP, wherein
the former refers to the grant of temporary allowable cut or TAC.
Respondent Macumbal stood firm that there was an honest mistake in the
designation of the date of the approval of the plan. And that after the
Regional Review Committee had deliberated on the TIOP ofri, the same
was presented to him for approval. RTD Roberto de Vera, who was the
Chairman of the Regional Review Committee, in a communication dated
April 28, 1995, informed him of this fact and wrote: "Should you
concur, attached is the approval letter of the aforesaid plan for your
signature." Respondent Macumbal, after reviewing the approved letter,
discovered that it did not contain the Approval Sheet and the
computation of the allowable cut. Hence, he returned the folder
containing the plan. On May 11, 1995, it was presented to him again and
after having found that his instruction was complied with, he signed
the Approval Sheet and the letter earlier presented to him with the
original date (April 27, 1995) left unchanged. The Approval Sheet would
show that he signed the same on May 11, 1995.
As to the charge of gross dishonesty for allegedly making a false claim
that a 10% timber inventory was previously conducted, respondent
Macumbal alleged that it was premised on the fact that the TIOP which
was presented by the Regional Review Committee contained a Stand and
Stock Table. That this document, among others, bore the signatures of
the Timber Management Officer of CENRO Dipolog, the Chief, Timber
Management Section , Regional Office and a Registered Forester. Hence,
he found no reason to doubt the authenticity of these documents and the
signatures of the DENR officials adverted to above.
Respondent Macumbal likewise claimed that he personally asked the RTD
for Forestry if there was an actual inventory conducted and was
allegedly informed that there was indeed an inventory; that RTD de Vera
likewise informed him that there was a tally sheet as shown by a series
of indorsements. Moreover, Timber Management Officer Romeo C. Tala, on
April 18, 1995 cited that the plan was prepared following DAO 24,
Series of 1991, and DENR Memorandum Order No. 8, dated July 4, 1991. In
addition, respondent Macumbal contended that Provincial Environment and
Natural Resources Officer Hilarion Ramos in his 3rd indorsement dated
April 21, 1995 certified that he checked, reviewed and found the same
to be in conformity with Department Administrative Order No. 12, series
of 1992.
Respondent Macumbal further emphasized that the prepared plan, which
was approved by him, was different and distinct from the IAOP.
Furthermore, Condition Nos. 1 and 2 contained in the March 1, 1995
Memorandum of former Secretary Angel C. Alcala clearly showed that the
TAC was for six (6) months only and that this will form part of the
sustained AAC to be computed based on the result of the ten (10)
percent inventory. He also claimed that the inventory, which he
mentioned to have been conducted previously as evidenced by the cited
documents and which became the basis for the Stand and Stock Table, was
only made for the purpose of the Temporary Integrated Operation Plan
(TIOP) and the grant of the TAC tori and not the inventory required for
the grant of a regular IAOP.
Allegedly prescinding from the foregoing circumstances, respondent
Macumbal informed then Secretary Angel Alcala that a 10% inventory was
conducted previously over the area.
As to the charge of gross neglect of duty resulting from his failure to
exercise adequate supervision over the logging operations ofri, he
answered that he could not personally supervise the day-to-day logging
activities of every timber licensee in his jurisdiction. He claimed
that this was the function of his subordinate officials like the RTD
for Forestry, the PENRO and CENRO, who were assigned in the field and
more directly involved in the operations of the licensees under the
jurisdiction of the DENR. He further claimed that he did not receive
any adverse reports on the activities ofri from the CENRO, PENRO or the
RTD. Reports from certain groups based in Dipolog City thatri was
conducting illegal activities were relayed to him by USec. Virgilio
Marcelo by telephone and he alleged to have acted immediately. Macumbal
also said that he ordered the relief of CENRO Edgardo Callanta and
required PENRO Hilarion Ramos to explain within seventy-two (72) hours
why the latter should not be relieved and/or charged for being remiss
in the performance of his official duties. On June 16, 1995, he stopped
the logging operations ofri until their Operation Plan is reviewed and
approved by the Central Office with the designated area of operations
delineated on the ground. Respondent likewise stated that in compliance
with the Memorandum of Secretary Victor O. Ramos dated July 25, 1995
revoking the authorization of TAC and ordering the stoppage of all
preparatory activities and logging operations ofri, he directed the
CENRO of Dipolog City on August 2, 1995 to implement the Order of the
Secretary.
On the charge that respondent RTD de Vera failed to exercise adequate
supervision of the logging operations ofri resulting in gross
violations committed by said company, such as: "cutting of almaciga
which is a prohibited species; cutting timber before the approval of
the IAOP; cutting undersized trees; farming-out its license to Vicmar
and Findlay-Miller; failure to employ a registered forester on full
time basis, etc., all in violation of existing forestry laws, rules and
regulations which omission constitutes gross neglect of duty and/or
inefficiency and incompetence in the performance of official duty
and/or conduct grossly prejudicial to the best interest of the
service", respondent de Vera alleged in his answer, which he reiterated
in his testimony, that it was caused by the approval by the Regional
Review Committee of the DENR, Region IX, Zamboanga City of the IAOP for
1995 ofri on May 6 and 11, 1995. To respondent de Vera, the same caused
the irregular resumption of logging operations of said company, without
taking into account the essential conditions prescribed under existing
forestry laws and regulations, particularly DAO 24 and DMO 8, both
Series of 1991, and DAO 12, Series of 1992, before a licensee could
resume operations.
Respondent de Vera further stressed that, from the start, he was
against the resumption ofri's logging operations without the latter
having first obtained its IAOP and having the same approved by the
DENR-Central Officer on the basis of the following reasons, to wit:
a)
b)
Respondent de Vera further testified that he did not sign the Approval
Sheet which was passed around the members of the Regional Review
Committee on May 6 and 11, 1995; that he insisted that the final copy
of the said IAOP be sent to the DENR Secretary for further review and
approval, considering that, as shown by the records,ri was not engaged
in continuing logging operations, and thereby should be treated as a
new one, in accordance with past practices.
Respondent de Vera nonetheless clearly admitted that something was then
wrong somewhere. And that, if there is anybody to be blamed, it should
beri as there appeared a reasonable ground to believe that the company
should be liable including the DENR field officers who failed to stop
the alleged logging operations in the area without an IAOP finally
approved by the DENR Secretary.
Respondent de Vera further alleged that before the subject IAOP was
submitted to the Regional Office for deliberation, he confronted one
Rodrigo Kwan, the General Manager-Owner ofri, in the presence of CENRO
Callanta, PENRO Ramos and several of his staff concerning the rumor
being spread that he was looking for the highest bidder to operate his
areas.
Respondent de Vera said that Rodrigo Kwan vehemently denied the alleged
rumor. He assured respondent de Vera that he will be the one to
personally operate the area in accordance with DENR laws, rules and
regulations. To further placate de Vera, Rodrigo Kwan was said to have
written a letter to DENR-Region IX dated March 17, 1995 reiterating
that he had not authorized anybody to transact business with the
Regional Office, relative to the operations ofri.
Respondent de Vera also said that his fears that a case will be lodged
against him happened. Faced with a formal charge before the DENR
investigation committee, he now claims that never did his Office
receive any report on the alleged illegal logging activities conducted
inside theri area. Quoting Supreme Court decisions, he alleged that he
could not be held liable for any action of which he had not been made
aware of. "Absence of relative information", his power of control and
supervision over his subordinates could not be properly exercised. He
further contended that there was nothing to alter, modify or nullify or
set aside in any subordinate officer's acts in the performance of their
duties and thereby substituting judgment of his own. He did not see
these subordinate officers perform their duties, and if they failed or
neglected to do the same, then he could have taken some actions or
steps as prescribed by law to make them perform their duties. (Mondano
vs. Silvosa, 51 O.G., No. 6, p. 2884; reiterated in Ganzon vs. Court of
Appeals, 200 SCRA 271, 283). According to him, in the hierarchy of the
DENR organization, the "Regional Technical Director (RTD) cannot be
held liable for the problems and responsibilities of lower officers, if
these were not properly presented to him nor was he consulted
therefore". Respondent de Vera likewise submitted that he had no
obligation to investigate matters not reported to him, nor does the RTD
have the power to personally attend to the day-to-day problems of the
lower officers encountered in the field by subordinate officers.
Respondent de Vera further argued that he was not remiss in his duties,
nor grossly neglectful, incompetent, much less guilty of grave
misconduct. Technically, grave misconduct refers to a serious
transgression of some established and definite rule of action and
implies a wrongful intention and not mere error of judgment. Allegedly,
these charges could not prosper against him in the absence of reliable
evidence showing that his acts were corrupt or inspired by an intention
to violate the law, or were in persistent disregard of well-known legal
rules. Absent any showing of these manifestations, as in the case at
bar, the charges against him should be dismissed outright. (Betguen vs.
Masangcay, 238 SCRA 475; Babatio, etc. vs. Tan, etc., Adm. Mat. 265-MJ,
22 January 1988, Amoso vs. Magro, 73 SCRA 107).
To judiciously resolve the case at bar, the following discussions are
deemed instructive on the matter.
A Timber License Agreement (TLA) is the privilege granted by the DENR
to a person or corporation to utilize timber within a specified portion
of forest land for a period of up to 25 years, renewable for another 25
years, with the right of possession and occupation thereof, but with
the obligation to develop, protect and rehabilitate the same. This is
provided for under Forestry Administrative Order (FAO) No. 11, known as
the "Revised Forestry License Regulations," its subsequent amendments
on the timber license agreement issued. All TLA holders must engage in
selective logging. It is likewise required that all forest
developmental activities within areas covered by timber concession
i.e.: logging, reforestation, timber stand improvement, forest
protection and delivery of community services are consolidated under
one plan called the Integrated Annual Operation Plan (IAOP).
Since the start of the organized and controlled utilization of forest
resources in the Philippines in 1863, with the establishment under the
Spanish Government of the Inspector General de Montes under the
Direction General de Administracion Civil up to the present, the
consistent practice has been to require an Operation Plan (OP) now
called Integrated Annual Operation Plan (IAOP) before a logging company
can start operation. And this is so required to ensure the orderly and
planned utilization of forest resources.
Consistent with DAO No. 24, Series of 1991, shifting logging from the
Old Growth (Virgin) Forest to the Second Growth (Residual) Forest, as
implemented by DENR Memorandum Order No. 8, Series of 1991, logging
operations in the Old Growth Forests ceased as of December 31, 1991.
Existing TLAs are allowed to continue their logging operation only
after a 10% inventory of its resources has been conducted. Only those
that have at least 1,200 hectares of 25 year old residual forests or an
average of 67 cu. m. of harvestable volume indicated in the approved
Management Plan, whichever is lower, are allowed to continue
operations.
In accordance with DMO No. 8, Series of 1991, before a 10% timber
inventory is ever conducted in the residual forest of an existing TLA,
the following activities among others, shall first be undertaken:
1.
2.
3.
4.
A 10% timber inventory shall only be conducted in accordance with
established procedures in the residual forest of a concession area if
the foregoing requirements shall be satisfied or complied with. The
result shall be the basis for the preparation of the IAOP of a TLA
holder.
IAOPs represent an essential part of the forest utilization aspect for
they are guides to the orderly extraction of wood materials from the
working unit. In the case ofri, however, the submitted IAOP approved by
respondent Macorro Macumbal and endorsed by respondent de Vera were not
prepared in accordance with prescribed procedures. A thorough review
and evaluation of the IAOP approved by RED Macumbal reveal that it was
defective and incomplete. The non-observance of the required procedure
was too glaring to be ignored and could not be passed off as an honest
mistake. The procedural missteps or lapses, attributable to RED
Macumbal are as follows:
1.
2.
3.
4.
5.
6.
A review of the records would tend to show that respondent Macumbal
relied on the signatures of his personnel affixed to the stand and
stock table without having first verified whether indeed a timber
inventory was conducted by DENR personnel, as required under DMO No. 8
including a sworn report by the forest officers concerned pursuant to
Sec. 41 of P.D. 705, as amended. As it turned out, the timber inventory
that served as basis in the grant of a TAC in favor ofri was conducted
solely by the company, which is not only self-serving, but considered a
blatant violation of the provisions of DMO No. 8.
Even respondent de Vera explicitly admitted in his Answer and his
subsequent testimony that the IAOP was prepared in violation of
existing law, rules and regulations of the Department of Environment
and Natural Resources (DENR).
Respondent Macumbal also admitted having been in the government service
for 31 years. As a matter of fact, he holds a Master's Degree in
Forestry from the University of the Philippines. There is no question
that he knew that his approval of the IAOP ofri was highly irregular.
In a desperate attempt to justify his action or inaction, he introduced
a new term — "Temporary Integrated Operations Plan," a term unheard of
and alien to his training as a forester. This is because a TIOP, as
suggested by him, is the antithesis of an IAOP. Otherwise, acceding to
his terminology would sanction the violation of the procedures set by
law for the orderly utilization of our forest resources.
RED Macumbal being then the highest ranking DENR official in Region IX,
was the alter ego of the DENR Secretary. As such, he stands accountable
for anything that goes wrong within his administrative jurisdiction.
Respondent Macumbal in his Answer and subsequent testimony clearly
admitted that he was aware thatri was non-operational for about nine
(9) years. He also admitted that his Office did not have an existing
record ofri. Moreover, he was fully aware that his RTD did not sign the
approval sheet of the IAOP ofri. These circumstances should have
prompted him to be more prudent and circumspect in his action before
allowing the company to operate. Prudence dictates that he should have
at least informed the DENR Secretary of the prevailing conditions
relative to the TLA ofri.
Respondent de Vera in his Answer and in his testimony before the
Investigating Committee admitted that there was something wrong with
the IAOP ofri. To him, this was the reason he did not sign the approval
sheet. Despite full knowledge of its infirmity, he nonetheless endorsed
the same. He likewise admitted that his suspicion thatri farmed out its
license to cut in favor of Vicmar and Findlay-Miller turned out to be
well-founded. As testified by respondent Macumbal, de Vera being an
RTD, should know or is supposed to know the violations that was being
committed byri on its TLA. Yet, through his inaction, he failed to
prevent the approval ofri's illegal operations.
Public office is a public trust. Public officers and employees must at
all times be accountable to the people, serve them with the utmost
responsibility, integrity, loyalty and efficiency and with patriotism
and justice and live modest lives. (Sec. 1, Art. XI, Constitution;
Sec. 32, Chapter 9, Book I, Administrative Code of the Philippines)
No subordinate officer or employees shall be civilly liable for acts
done by him in good faith in the performance of his duty. However, he
shall be liable for willful or negligent acts done by him which are
contrary to law, morals, public policy and good customs even if he
acted under orders or instructions of its superior (Sec. 39, Chapter 9,
Book I, Administrative Code of the Philippines). Respondent's
misconduct, misfeasance, or malfeasance in the performance of his
official duties consisting of dishonesty, inefficiency and incompetence
in the performance of official duties and conduct prejudicial to the
best interest of the service are grounds for dismissal under Sec. 11
(b), pars. 1, 8 and 27, Civil Service Law (P.D. 807) (Unknown Municipal
Councilor of Domingo, Nueva Ecija v. Almonioa, 212 SCRA 330).
Respondents' major errors and misdeeds committed in the discharge of
their duties and responsibilities have caused the irregular re-opening
of the logging operations ofri. Worse, it resulted in gross violations
of forestry laws and regulations committed by said company, such as:
"cutting of almaciga which is a prohibited species; cutting timber
before the approval of the IAOP; cutting undersized trees; farming-out
its license to Vicmar and Findlay-Miller; failure to employ a
registered forester on full time basis, etc., all in violation of
existing forestry laws, rules and regulations. They constitute grave
misconduct, dishonesty, gross neglect of duty, inefficiency and
incompetence in the performance of official duties and/or conduct
grossly prejudicial to the best interest of the service.
In view of the foregoing considerations, the recommendation for the
DISMISSAL of respondents Regional Executive Director Macorro Macumbal
and Regional Technical Director Roberto de Vera from the service is
hereby approved.
So ordered.
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