ADMINISTRATIVE ORDER NO. 59 -
IMPOSING THE PENALTY OF DISMISSAL FROM THE SERVICE ON DR. FERNANDO A.
MELENDRES, EXECUTIVE DIRECTOR OF THE LUNG CENTER OF THE PHILIPPINES
(LCP), WITH FORFEITURE OF ALL HIS RETIREMENT BENEFITS AND
DISQUALIFICATION FROM RE-EMPLOYMENT IN THE GOVERNMENT SERVICE
Respondent Executive Director Fernando A.
Melendres of the Lung Center of the Philippines (LCP) is the subject of
a complaint filed by LCP's employees for procurement of presentation
banner without public bidding comped with falsification of public
documents; falsification of documents in the hiring of an architectural
consultant; violation of auditing rules on the drawing of petty cash
advances to circumvent the law on public bidding of infrastructure
projects; and unauthorized implementation of the reorganization plan
without the required approval of the LCP's Board of Trustees.
The fact-finding committee created by the LCP's Board of Trustees
submitted a report finding a prima facie case against respondent
Executive Director Melendres and recommending the filing of formal
charges against him. In turn, the Board of Trustees approved the said
finding and recommendation, transmitted the report and the records of
the case to this Office, and further recommended to the President the
placing of Executive Director Melendres under preventive suspension
during the pendency of the investigation against him.
In view of the foregoing and pursuant to Executive Order (E.O.) No. 12
dated April 16, 2001, Executive Secretary Alberto G. Romulo, by
authority of the President, issued Administrative Order (A.O.) No. 39
on September 11, 2002 ordering the preventive suspension of respondent
Executive Director Melendres for ninety (90) days and directing the
Presidential Anti-Graft Commission (PAGC) to conduct a formal
administrative inquiry against him for the alleged commission of the
aforementioned acts that if true are clearly disadvantageous to the
government and violative of Civil Service laws and regulations.
On October 22, 2002, a complaint-affidavit dated October 21, 2002 was
filed before the PAGC by LCP's employees, namely, Sullian Sy Naval,
Theresa M. Alcantara, Jose Pepito M. Amores, Vincent N. Balanag, Jr.,
Guillermo G. Barroa, Jr., Rey A. Desales, Norberto A. Francisco, David
F. Geollegue, Benilda B. Galvez, Luisito F. Idolor, Victoria C. Idolor,
Buenaventura V. Medina, Jr., Newell R. Nacpil, Raoul C. Villarete, and
Guillermo Madlang-awa, charging respondent Executive Director Melendres
with commission of acts disadvantageous to the government, violations
of the Civil Service Rules and Regulations, and incapacity to manage
and administer the affairs of LCP.
In its investigation report submitted to this Office on January 9,
2003, PAGC states the charges against respondent Executive Director
Melendres as follows:
"I
Procurement of presentation banner without public bidding comped with
falsification of documents.
1.1 On the first offense, the respondent
procured/purchased a presentation banner without going through canvass
as required by law. Respondent chose Luis and Associates (the maker of
the presentation banner) as an exclusive, distributor without any
reason or justification for such. The kind of work required for the
presentation banner was not an ultra special work that could only be
done by one contractor that might merit the exclusive distributor
excuse used by the respondent.
1.2 Worse, the respondent tried to cover his tracks
by falsifying a certification of canvass. The falsity is shown by the
fact that the alleged canvass was made only after the delivery of the
presentation banner. The delivery of the banners was made on 27
November 2001 while the purported canvass was done on 03 December
2001.
1.3 One of the complainants, Jose Pepito Amores
("AMORES") found the illegal procurement of the presentation banner
upon inspection of the documents for the procurement. AMORES is a
required signatory for the approval of the procurement. On perusal of
the documents, AMORES noticed that the respondent erased his name as a
signatory on the disbursement voucher. Looking at the photocopy of the
back of the aforementioned voucher, there clearly was an erasure
performed by the respondent to override AMORES' authority and preclude
AMORES' knowledge of the illegal procurement as well.
1.4 There was also a falsification done by the
respondent on the purchase order dated 21 December 2001 for the
presentation banner. On the carbon copy of the purchase order for the
banner, it indicates the procurement method as "CANVASS" in a typeface
clearly different from the top. The photocopy of the reverse side of
said purchase order clearly indicates the remark "Exclusive
Distributor". The respondent, realizing that this work will not qualify
as an "exclusive distributor" changed "Exclusive Distributor" to
"Canvass".
1.5 The respondent is indeed guilty of illegally
procuring the presentation banner by conforming to a quotation dated 26
November 2001 by Luis and Associates and received by the respondent on
27 November 2001 nearly a month before the purchase order. Add to that,
a statement of account from Luis and Associates dated 05 December 2001
received by the respondent on the same date indicating a bill for a
presentation banner already DELIVERED to the LCP. The quotation and
statement of account of Luis and Associates were received by the
respondent before the purchase order dated 21 December 2001.
II.
Falsification of documents in the hiring of architectural consultant in
the person of Architect Federico R. Medina.
2.1 There are two (2) Architectural Service
Agreements entered into by the respondent for LCP with Architect
Federico R. Medina. The first agreement dated 01 June 2000 was for
seven month commencing 01 June 2000 to 31 December 2000. This agreement
was antedated by the respondent as evidenced by the fact that the Book
Number of the Notary has a correction from "VII to "X". If said
document truly belonged to Book X of the Notary Public, the same would
have not included any surplusage "II" needing any correction.
Respondent is a signatory to the contract and for such important
matter, he cannot invoke ignorance nor pretend not to know the
circumstances attending the execution of the document.
2.2 On 31 May 2001, respondent issued Center Order
No. 152, s. 2001, extending the services of Architect Medina for the
period from 01 June 2001 to 31 December 2001. The second agreement
dated 01 January 2001 was for a period of one year commencing 01
January 2001 to 31 December 2001 and was notarized on 30 July 2001.
There is an evident irregularity when the two aforementioned documents
are read together. Respondent antedated the second agreement.
2.3 Respondent falsified the second agreement when he
realized that his Center Order 152 could not legally bind the parties.
So, respondent falsified the second agreement to make it appear that
the agreement was for the whole year of 2001. What makes the
falsification more strikingly evident is that the second agreement was
notarized on 30 July 2001. The falsification consists in the falsity of
the date of execution, the evident truth being that it was signed and
executed on 30 July 2001 and not 01 January 2001.
III.
Violation of auditing rules on the drawing of petty cash advances to
circumvent the law on public bidding of infrastructure projects.
3.1 For the construction of the 2nd floor, T-Block
building, an infrastructure project of the LCP, the respondent created
special petty cash advances through the issuance of several Center
Orders. These Center Orders are violations of Sec. 174 (g) of the
Government Accounting and Audit Manual ("GAAM"). The provision reads:
"No cash advance shall be granted on account of infrastructure or other
undertakings on a project basis".
3.2 The respondent used these cash advances and
special petty cash funds for the constructions of the 2nd floor,
T-Block Building in violation of the GAAM. The amounts authorized for
special cash funds/cash advances under the abovementioned Center Orders
were big or substantial, exceeding the maximum authorized/allowed by
pertinent rules and regulations and practice. Under item 4.3.2 of COA
Circular #97-092 dated 10 February 1997, it states:
"Payments out of cash advances shall be allowed only for amounts not
exceeding P15,000 for each transaction, except when a higher amount is
allowed by law and/or with specific authority by the Commission on
Audit. Splitting of transactions to avoid exceeding the ceiling amount
shall not be allowed."
It may be noted that the expenditures incurred via the supposed
authority granted or provided in the particular Center Order issued by
respondent are in large amounts exceeding the P15,000 ceiling as
enumerated above.
3.3 There is also a violation of the public bidding
law in the issuance of the various Center Orders. Under paragraph no.
4.5.1 of Executive Order No. 262 as amended by Executive Order 40,
series of 2001, it states:
"For contracts to be bided costing more than One Million Pesos, pre-bid
conferences shall be conducted by the government to clarify and/or
explain any of the requirements, terms and conditions as specifications
stipulated in the bid documents."
3.4 The construction of the 2nd floor of the T-Block
Bldg. of the LCP entailed an expenditures of more than one million
pesos, thus it should have been subjected to public bidding, which was
not done in this case. To avoid or circumvent the above-cited
provisions of E.O. 262, as amended by E.O. 40, there was a continual
and series releases and utilization of petty cash funds/cash advances
for the construction project. Consequently, the public bidding
requirement for big infrastructure projects was violated in this
instance.
IV.
Unauthorized implementation of a reorganization plan unapproved by the
Board of trustees.
4.1 Respondent issued numerous Center Orders during
the year 2000 and 2001, which reorganized the organizational setup of
LCP, caused the transfer/movements of employees and created various
committees. In doing so, there is no showing that the
re-organization/personnel movements are in accordance with
Rationalization and Streamlining Plan of the Department of Health
("DOH") and approved by the Department of Budget and Management
("DBM"), in accordance with Executive Order No. 102, and
Malacañang Memorandum Circular No. 62, s. 2000. There was no
presentation of any factual or legal basis to justify personnel
movements and reorganization.
4.2 The respondent had placed hospital staff that he
can control at the proper place to conspire with him to carry out
anomalous transactions. In Center Order 107-A, S. 2000, the respondents
had removed the financial responsibilities of AMORES and conferred them
to Albilio C. Cano ("Cano"). What was once under the control of AMORES
was now with one of his people. To further his plan to mask his
criminal intentions, respondent in Center Order 130-A, S. 2001 gave
more financial responsibilities to CANO and another staff close to him,
Angeline A. Rojas ("ROJAS"). The responsibility/authority transfer was
part of grand scheme to defraud LCP. The respondent placed his people
in key positions and they were to directly report to him. The
respondent in effect abolished the inherent check and balance of the
original set-up. The respondent made this reorganization without the
required approval of the Board of Trustees ("BOT") of the LCP.
V.
Unlawful/Excessive Availments of Gasoline Expenses.
5.1 The respondent, as Director of the LCP, uses a
Toyota Corolla vehicle with Plate No. SEF-760 for his official
functions. However, from 21 December 2001 until 03 January 2002 or for
14 days, respondent availed of a total of 181.53 liters of gasoline,
valued at Php 3,0001.13. Thus, respondent averaged 12.96 liters each
day within the 14-day period, or Php 214.36 per day. However, the
averages become more suspicious considering the intervening holidays
from 21 December 2001 to 03 January 2002, where respondent is not
expected to utilize the aforesaid vehicle or the usage thereof is
unlikely.
5.2 In respondent's availment of the gasoline used,
he never submitted any trip ticket to support that indeed trips made
during the holiday period were official businesses. This action is in
disregard of the usual procedures of the LCP.
VI.
Payment of the Cellular Phone Bills of Respondent using LCP funds.
6.1 Respondent used funds of the LCP to pay for his
cellular phone bills. There is no indication that all the calls made
were for government related purposes. The phone bill of the respondent
for the period of 13 June 2001 to 12 July 2001 shows current charges
totaling P1,331.00. The respondent has used LCP funds to pay for his
personal calls through disbursement supported by voucher no. 0108-107
dated 13 August 2001. The respondent did it a second time for his phone
bill for the period 13 July 2001 to 12 August 2001 with current charges
of P1,410.99. The respondent likewise had his personal bills paid with
LCP funds [as] evidenced by voucher no. 0109-012 dated 03 September
2001. Telephone Number (02) 284-1479 repeatedly appeared in Globe Phone
Bill, which is the Phone Number of Ms. Gigi Lorenzo, his alleged
mistress.
VII.
Awarding if Contract of Lease for Respondent's own and direct benefit.
7.1 Respondent, on behalf of the LCP, executed a
Contract of Lease dated 01 February 2002, wherein he accorded to
himself the privilege to lease a room at LCP's Doctor's Clinic, to the
prejudice of the government and demoralization of the physicians who
have been unjustly denied the privilege of engaging in the private
practice of medicine.
7.2 Worse, respondent committed another falsification
when he signed the same supposedly in the presence of complainant
AMORES, CANO and Atty. Natividad Ramos who were not truly present, as
evidenced by the Contract which AMORES photocopied from the original on
the date he signed the document.
VIII.
Unlawful Award of the Sports Consultant Services Agreement.
8.1 Respondent, again, on behalf of the LCP entered
into a Sports Consultant Services Agreement with a certain Mr. Godfrey
S. Monsod. There is no justification that LCP absolutely needs the
services of such a consultant. Moreover, there is no showing whatsoever
that respondent was authorized to secure the services of such
consultant. Worse, there is no indication that Mr. Monsod is best
qualified to be such a consultant and if his fee is reasonable under
the circumstances. At present, Mr. Monsod is visible organizing rallies
for Dr. Melendres' cause, obviously [a function] not detailed in his
original job description.
IX.
Issuance of Center Order No. 155-A, S. 2001.
9.1 In Center Order No. 155-A, S. 2001, respondent
without basis in law, skirted the public bidding requirement for
purchases or acquisitions of "unit or systems" valued in excess of
P1,000,000.00. Apart from being vague and easily subject to
circumvention of the requirements of public bidding, there in no
reasonable basis for the aforesaid Center Order. Simply put, the
memorandum paves the way for the acquisition of a "system" which may
consist of various independent components, where each component may be
valued for less than P1,000,000.00 thus exempting and circumventing, an
otherwise purchase totally exceeding P1,000,000.00 from public bidding.
X.
Issuance of Center Order No. 55, S. 2000.
10.1 Center Order No. 55, s. 2000, dated 14 April
2000, respondent granted Representation and Transportation Allowances
("RATA") to Dr. Roberto Montevirgen, who was then designated
temporarily as officer-in-charge of the Pharmacy. However, respondent
caused the payment of the RATA as early as March 2000, or before the
actual appointment. Worse, RATA was paid to Ms. Basobas, being the
Chief Pharmacist. Thus, RATA was paid twice to the "Head of the
Pharmacy Division", one to the designated Officer-in-charge, Dr.
Roberto Montevirgen and one to the Plantilla Chief Pharmacist, Ms.
Heidi Basobas.
XI.
Multiple Demotions of Complainant Jose Pepito Amores.
11.1 On 12 July 2001, respondent created a new
organization set-up, through Center Order 255, S. 2001, wherein he
created the five (5) services namely: 1) Administrative and Ancillary;
2) Finance; 3) Medical; 4) Nursing; and 5) Corporate Services, which
are headed by five (5) persons/Deputy Director. As already stated, the
new organizational set-up was not approved by the DOH and the DBM in
violation of E.O. No. 102 and Malacañang M.C. No. 62, S. 2000.
11.2 On the other hand the DBM approved an
organizational set-up of LCP with two (2) services under two (2) Deputy
Directors, Namely: 1) Medical Services and 2) Hospital Support
Services. With Center Order No. 255, S. 2001, complainant AMORES was
demoted both in rank and function. Otherwise stated, other personnel
were promoted to the same level positions of Deputy Director AMORES
without any indication that proper deliberations were conducted or
government approvals secured. It must be further stressed that AMORES'
appointment as Deputy Director included specific functions attendant to
said position.
11.3 However, with the aforesaid Center Order, it is
manifest in the structural diagram that in implementing the said Order,
the Nursing Service and Finance Service (Accounting, Budget, Billing,
Credit and Collection) were removed from the supervision of the Office
of the Deputy Director for Hospital Support Services. Worse,
respondent's Center Order No. 107-A, S. 2000, removed from AMORES the
supervision over the following divisions: 1) Budget and Accountancy; 2)
Billing and Medicare; 3) Cash; 4) Pharmacy; 5) Procurement, Property
and Supply Division, all in violation of the DBM approved set-up. Prior
thereto in Center Order 55, S. 2000, respondent placed the Pharmacy
Division under the supervision of the Deputy Director for Medical
Services, in violation of the DBM approved set-up.
11.4 In respondent's Memorandum No. 12-A. S. 2000, he
[AMORES] was removed as member of the Executive and Finance Committee.
The entire foregoing is in derogation of the responsibilities and
functions detailed to complainant AMORES' appointment. The position of
Deputy Director for Hospital Services became in reality a futile
position. While the plantilla position of Deputy Director could not be
taken away from Dr. Amores legally, he became a titular hear without
function and power. Worse, no explanation was forwarded to him in
person or in writing except for the successive diminution of functions.
Thus, all the foregoing constitutes acts of multiple demotion as well
as humiliation.
XII.
Questionable Appointment.
12.1 Respondent appointed Doctors Dina B. Barroa,
Jr., Camilo C. Pada, and Joseph Leonardo Z. Obusan to their current
positions in the absence of any: 1) announced vacancy in the plantilla
positions to which the aforesaid persons were appointed; 2) list of
applicants to the said positions; and 3) deliberations from LCP's
Medical Staff Accreditation Committee.
12.2 After the appointment of complainant Barroa,
respondents issued a letter dated 12 March 2002 terminating complainant
Barroa's services for the simple reason that his temporary appointment
expired despite complainant's Barroa's long years of service and
permanent status prior to his temporary designation. Moreover,
complainant Desales' transfer as head of Thoracic Surgery and
Anaesthesia Department, to head of Out-Patient Department constitute a
demotion in function, as the same was done without factual basis.
Appointments are whimsical and even glaringly violate the rules for
selection of such key positions in the Corporation.
XIII.
Undue discrimination in the grant of the privilege to the practice of
medicine and in other instances.
13.1 Respondent issued Memoranda Nos. 01-A and 2, s.
2002 prohibiting full time salaried physician of the LCP from
conduction private clinics during office hours without specific
permission from him or from the Secretary of Health. Office hours are
from 8:00 a.m. to 5:00 p.m. Monday to Friday.
13.2 The aforementioned memorandum clearly disregards
and violated the VERY ESSENCE of the Administration Order 172, s. 2001,
2nd paragraph [of] which states. . .
"As an incentive and in recognition for (sic) their commitment to
remain as members of [the] hospital staff for a longer period [and] for
continuous improvement of the health care delivery service of the
faculty, PRIVATE PRACTICE is allowed."
The instantaneous curtailment of privileges of the selected doctors was
without reason, when since time immemorial, private practice was
allowed and contracts to use facilities of the hospital for said
private practice were given out. Discrimination was evident as private
practice was ALLOWED to a number of FULL TIME physicians (Montevirgen,
Diaz, Pada, Mendoza, among others) who have not complained against the
respondent.
13.3 AMORES requested from respondent that he be
allowed to engaged (sic) in private practice within LCP. Respondent had
not acted on said request. At the same time, respondent has granted
Doctors Dina V. Diaz, Jaime M. Mendoza, Roberto M. Montevirgen, Camilo
C. Pada, the privilege to engage in private practice during office
hours from 3:00 pm to 5:00 pm, even during weekdays, as evidenced by
the Contract of Lease for the rooms for [the] use of the aforementioned
doctors.
13.4 Worse, as already stated in paragraph 7 of this
complaint, respondent granted unto himself the right to lease a room
thereby promoting his interest over and above his colleagues, to the
detriment of the service.
13.5 The discriminatory conduct of respondent is all
too manifest that complainants herein had to seek the intervention of
the Honorable Secretary of Health Manuel Dayrit in order to
facilitate/grant their request to be allowed to the private practice of
medicine. Respondent has gone to the extent of posting the name of the
complainants in public and has barred access to the doctor's office for
the most trivial of reasons causing humiliation and undue moral damage
to some of the complaints.
XIV.
Pending cases with the Ombudsman.
14.1 The respondent has several cases pending with
the Office of the Ombudsman regarding the act[s] in relation to his
Office, which have been deemed criminal. The table below is a list of
the pending cases: (Note: These cases are not part of this complaint
but are mentioned here to show poor governance and irregular/anomalous
acts of the respondent.)
Complainant Case
No. Offense
Amores, et al CC-02-0428-G
Malversation and
falsification
Amores CC-02-0567-1 Illegal
Procurement
Genoveva Hipol CA-02-0076-C Pending
Administrative
Adjudication
Genoveva Hipol CA-02-0077-C Pending
Administrative
Adjudication
Guillermo Madlang Awa CA-02-0078-C
Pending Administrative
Adjudication
Guillermo Madlang Awa CC-02-0113-C
Pending Investigation
Guillermo Madlang Awa CC-02-0887-C
Pending Administrative
Adjudication
XV.
Immorality.
15.1 The respondent does not only have criminal
intentions, he is immoral as well. The respondent is legally married to
Dr. Eufrocenia Angeles-Melendres. While his marriage still subsided,
the respondent has sired a child with his mistress, a Gigi Facundo
Lorenzo, a former LCP nurse who has been living with the respondent in
his house at Antipolo. A government officer and being a head of an
important institution like the LCP should be a role model and a
responsible citizen. Yet, the respondent has been the opposite.
Attached, as Annex "HH" is a copy of the NSO certified birth
certificate of a Ma. Victoria Facundo Lorenzo born on 11 appointed
relatives of his current mistress, Ms. Gigi Lorenzo. To name a few:
a) Mr. Leonardo Lorenzo — brother of Ms. Lorenzo,
assigned to the Dietary Department;
b) Ms. Shirley Bautista-Lorenzo — wife of Leonardo,
assigned to the Dietary Department; and
c) Ms. Daisy Lorenzo — sister-in-law of Ms. Gigi
Lorenzo, assigned to the cashier.
XVI.
Drug Abuse (DEMEROL)
16.1 The respondent aside from being anomalous in his
way of leadership and immoral in his personal life is also a drug
dependent abusing the drug DEMEROL. He has coerced complaint-doctors,
Dr. Idolor and Dr. Alcantara to issue prescriptions for the
aforementioned drug way beyond the normal therapeutic limit. The
respondent has admitted using the drug and undergoing detoxification
for it during the DOH Fact Finding Committee hearings.
16.2 Attached as Annex "II" is an affidavit of one
Teofilio Guevarra, a driver employed at the LCP. The affiant attested
to the fact that he assisted on (sic) the respondent in injecting the
drug demerol into his arm. Also attached as Annex "JJ", is a
handwritten note by Dr. Nelia Cortes Maramba. Dr. Maramba was asked
during the hearings of the Fact Finding Committee of the DOH
investigation [of] the respondent to write what drug the respondent
abused in the detoxification process of the respondent (sic)."
Finding sufficient basis to commence an administrative investigation,
PAGC issued an order, dated November 8, 2002, requiring respondent
Executive Director Melendres to file his counter-affidavit or verified
answer to the complaint within a non-extendible period of ten (10) days
from receipt thereof.
On November 18, 2002, respondent Executive Director Melendres filed the
required counter-affidavit together with the entry of appearance of his
counsel, Atty. Agusto M. Macam, in the PAGC. Relevant portions of the
said counter-affidavit are quoted by PAGC in its investigation report
as follows:
A. "On the procurement of presentation banner without
public bidding comped with falsification of documents.
The banner in question was to be used during the inauguration of a Lung
Center building. The upper portion was a painted picture of the
President and immediately below the picture were the following words:
"Flagship project of Her Excellency President Gloria Macapagal Arroyo
with loving concern for the Filipino people."
Below these words was the painted picture of the Lung Center.
The mode of the procurement was originally a negotiated contract. The
justification for the negotiation was in accordance with Rule 35.1.5(c)
of the Implementing Rules and Regulations (IRR) of E.O. 40 s. 2001,
which read:
"Whenever
the goods are to be used in connection with a project or activity which
cannot be delayed without detriment to the public service."
Owing to the unfamiliarity of procurement officials on the various
modes of procurement prescribed by said E.O. 40, which was promulgated
only in 2001, the mode of procurement was stated in Purchase Order (PO)
as "Exclusive Distributor", referring to the supplier of the banner and
had the same inadvertently approved. Upon the advice of more
knowledgeable officials on the new procurement law (E.O. 40), that
exclusive distributorship was not appropriate to justify the negotiated
procurement of the banner and aware that the thrust of audit of the
Commission on Audit (for brevity, "COA") is invariably on the
reasonableness of price rather than on the mode of procurement, I
ordered a canvass of the price of the banner even after it had been
delivered and accepted with the intention of requesting the dealer to
reduce its price in the event that the same is found to be high.
It turned out however that the result of the canvass showed that said
dealer's price of P15,000.00 was the lowest. (Please see attached
canvass sheets) Hence the inapplicable mode of procurement of
"Exclusive Distributor" had to be changed to "Canvass" not only to
rectify the error committed by less-knowing procurement officials but
also to conform with (sic) the reasonableness of price that had been
established through canvass. Implicit in this, I was likewise advised
by the same more knowledgeable officials that pursuant to Rule
35.1.2(b) of the IRR, supra, exclusive distributorship is not one of
the alternative modes of procurement. It is merely one of the
justifying factors whenever the Director (sic) Contracting Mode of
procurement is availed of.
B. On the Falsification of documents in the hiring of
architectural consultant in the person of Architect Federico R. Medina.
Under Lung Center Order No. 152, s. 2001, the approved hiring of an
Architect-Consultant was clearly indicated thereon. Because of the
urgent need for his technical services, said consultant started to
render services even before a formal contract of service was entered
into with him although the meeting of the minds which is an essential
requisite of a contract had, at that point in time, already been
reached. To support the claim of said consultant for actual services
rendered, the written contract had to be dated as of the date when said
services were started to be rendered. Otherwise, a grave injustice
would have been committed to him in the form of unjust enrichment,
which verily is not sanctioned by law. Needless to say, out laws are
replete with jurisprudence recognizing payment based on quantum merit.
C. On the violation of auditing rules on drawing of
petty cash advances to circumvent the law on public bidding of
infrastructure projects.
The construction of projects for which cash advances were drawn for the
purpose was undertaken through administration. By administration, it
means that no contractor who provides for labor and materials [is]
involved because the project are (sic) accomplished, using only organic
manpower of the hospital. This scheme is not only legal; it is very
much advantageous to the government. Hence, the need to resort to
drawing of cash advances to facilitate the payment of
supplies/materials at a much cheaper cost because of their being paid
on a cash basis was undertaken. (sic) There is no such dispute that
dealers demand higher prices when the transaction is on a charged basis
owing to the cost of money and other overhead cost as a result of a
transaction on a credit basis. (sic) Verily, the savings derived from
undertaking projects by administration is by no means
negligible.
Sec. 174 (g) of the Government Accounting and Auditing Manual (GAAM)
was cited by the complainants as prohibiting cash advance on account of
infrastructure project. The GAAM was issued by COA through its Circular
No. 91-368, December 19, 1998, which is embodied on the third page of
the Manual. This prohibition has already been deleted in its subsequent
Circular No. 97-002, dated February 10, 1997. The repealing clause of
said Circular reads: "all Circulars, Memoranda, Rules and Regulations
and other issuances inconsistent herewith, are hereby repealed, amended
or modified accordingly". Res Ipso Loquitor likewise implicit (sic).
Implicit in this, is that GAAM was neither published in an official
gazette nor in a newspaper in (sic) a general circulation. As such, its
enforceability is questionable following the doctrine enunciated in
Canda vs. Tuvera, 146 SCRA 453, 454 and in De Jesus vs. COA, G.R. No.
109023, dated August 30, 1998.
Respondent Melendres wishes to stress that most of the invoices in
support of the procurement out of the cash advances for a particular
project did not exceed the P15,000.00 ceiling set by COA Circular No.
97-002, supra. It is possible though that some invoices paid out of
said cash advances may have exceeded the ceiling. But the same was done
in good faith, consistent as it was, in the interest of economy and
efficiency as purchased discounts were definitely bigger with the
volume of order[ed] materials increasing over time. A copy of the
Summary of Construction Materials out of the petty cash advances is
hereto attached and marked as Annex "5" and made integral part thereof.
Such alternatives was (sic) much better than splitting the requisition
to avoid exceeding the ceiling which according to COA Decision No.
2404, dated December 22, 1989, copy attached, is a transaction that
must be disallowed in audit. If, indeed, there were invoices paid out
of cash advances exceeding the ceiling, it is (sic) merely a subject of
an audit suspension that would require us to justify or to secure a
belated authority from COA, which we failed to secure before hand
through oversight. When and if the auditor who is supposed to be guided
by the dictates of economy and efficiency in carrying out her
quasi-judicial function, issues a notice of Audit Suspension requiring
us to serve a specific authority from COA, we would be willing to
comply with such requirement. Meantime, that said notice has not been
issued, it would be premature for the Honorable Commission to take
cognizance on (sic) this particular allegation by the complainants.
D. On the unauthorized implementation of
reorganization plan unapproved by the Board of Trustees.
Respondent Melendres denies having reorganized the Lung Center. What I
did was to Issue reassignment orders to some personnel in the interest
of the service. Such reassignment is very much allowed by Civil Service
laws and regulations for as long as there is no demotion involved. As
held by the Supreme Court in Fernando vs. Sto. Tomas, 234 SCRA 346, a
reassignment in good faith in the interest of the service is not
demotion in duties, responsibilities, status, or rank because demotion
presupposes the issuance of an appointment. In the case before this
Honorable Commission, such appointment manifesting any demotion is
wanting. Besides, personnel who were reassigned have not exhausted
administrative remedies by appealing their reassignment with the Civil
Service Commission.
E. On the Unlawful/Excessive availments of gasoline
expenses.
Under COA Circular No. 85-55 s. 1985 what is excessive or extravagant
is situational and is subject to be evaluated, determined and if
warranted by circumstances, disallowed in audit by the auditor. If and
when any notice to that effect is issued to us, we should be ready to
justify any allegation of excessive consumption of gasoline, etc.
Again, it is premature for the complainants to raise the issue at this
stage.
CONSOLIDATED ANSWER AND COMMENT TO THE REST OF THE ALLEGE (sic)
OFFENSES COMMITTED BY RESPONDENT HEREIN (by way of Affidavit)
F. On the Payment of the Cellular Phone Bills of
Respondent using LCP funds
G. On the awarding of a Contract of Lease for
respondent's own and direct benefit
H. For unlawful award of the Sports Consultant
Services Agreement
I. On the issuance of Center Order No. 155-A, s. 2001
J. On the issuance of Center Order No. 55, s. 2000
K. On the multiple demotions of complainant Jose
Pepito Amores
L. On the questionable appointments
M. On the undue discrimination in the grant of the
privilege to the private practice of medicine and in other instances
N. On the pending cases with the Ombudsman
O. On the immorality issue
P. On Drug abuse issue
The foregoing allege (sic) offenses committed by respondent herein
(except item N) had been the subject of an exhaustive report and
findings of the Committee which undertook a fact-finding inquiry during
the marathon hearing conducted at the Lung Center pursuant to the Order
of the Secretary of Health in Department Order No. 119, series of 2002,
dated March 22, 2002, supra.
Respondent Melendres herein submitted his affirmative defense during
the investigation in respect of the above charges and the Committee
submitted its Report and findings of its investigation to the Secretary
of Health on June 28, 2002 (Annex "2", supra), which the respondent is
incorporating, the same way of reference (sic).
Respondent Melendres requested for a complete copy of Transcript of
Stenographic Notes during the Fact-Finding Investigation conducted on
the complaint against Dr. Fernando A. Melendres but was advised that
the Committee never took stenographic notes of the proceedings as it
lacked the skilled manpower to do so, stating its reason that, pursuant
to Civil Service Rules, a stenographic transcription is not necessary
in formal investigation much more in a Fact-Finding investigation such
as that we had conducted. A copy of the letter of the Committee
Chairman is hereto attached and marked as Annex "6" and made integral
part hereof.
In any event, respondent Melendres is still in [the] process of
completing the review of all the documents submitted by both the
complainants and the respondent, including the tape recording of the
proceedings and the sworn testimonies given by the witnesses during the
investigation.
Conformably, a reservation to submit a supplemental counter affidavit
is hereby put on record should the notes be made available after the
completion of the review and evaluation of the proceedings of the
Committee Investigator to insure that respondent Melendres may be able
to present in more details his defenses within the time frame required
by this Honorable Commission."
On November 11, 2002, dissatisfied with respondent Executive Director
Melendres' counter-affidavit, PAGC ordered the setting of the
preliminary conference of the case on November 21, 2002 at 10:00
o'clock in the morning.
During the scheduled preliminary conference, complainants were given
three (3) days or until November 25, 2002 to submit their reply to the
counter-affidavit of the respondent if they deemed it necessary.
Respondent was, in turn, given three (3) days or until November 28,
2002 to submit his rejoinder to the reply, if there is any. Thereafter,
PAGC scheduled the continuation of the preliminary conference on
November 28, 2002 at 3:00 o'clock in the afternoon.
Complainants did not file any reply to respondent's counter-affidavit.
Consequently, during the continuation of the scheduled preliminary
conference, the parties were directed by PAGC to submit their
respective position paper within five (5) days from November 29, 2002,
or until December 4, 2002. PAGC informed the parties that on the basis
of the records and the submitted position papers, the case shall be
deemed submitted for resolution.
Subsequently, respondent Executive Director Melendres filed with the
PAGC a motion for formal hearing and a motion for inhibition, both
dated November 29, 2002. In response, PAGC issued an order dated
December 3, 2002, denying for lack of merit the said motions, thus:
"The respondent, in the above-entitled case has been afforded due
process through an Order requiring him to file his
Counter-Affidavit/Answer to the Complaint and the opportunity to be
heard through an Order setting the case for a Preliminary
Hearing.
Be it noted that due process, as a constitutional precept does not
always and in all situations, requires trial-type proceedings. The
essence of due process is to be found in the reasonable opportunity to
be heard and to submit any evidence one may have in support of one's
defense. "To be heard" does not only mean verbal arguments in court.
One may be heard also through pleadings. Where opportunity to be heard,
either through oral arguments or pleadings, is accorded, there is no
denial of procedural due process. (Stronghold Ins. Co. vs. Court of
Appeals, 205 SCRA 605).
The above-entitled case has already been submitted for Resolution on
the basis of the pleadings and Position Papers to be submitted not
later than December 4, 2002.
Whereas, the Motion for Inhibition is moot and academic since the case
is already submitted for Resolution.
WHEREFORE, premises considered, the Motion (For Formal Hearing and/or
Investigation) and the Motion for Inhibition are hereby DENIED for lack
of merit."
On December 4, 2002, complainants filed with PAGC their position paper.
Respondent Executive Director Melendres, however, failed to submit his
position paper as required by the order dated November 28, 2002.
In. its investigation report, PAGC states the pertinent issues of the
case and its findings and recommendations thereon as follows:
"1.) Whether or not Executive Director Dr. Fernando
A. Melendres has caused undue injury to the Lung Center of the
Philippines, including the Government, in the procurement of the
presentation banner without public bidding comp with falsification of
documents.
2.) Whether or not Executive Director Dr. Fernando A.
Melendres has accused prejudice and undue injury to the government when
the Contract of Lease dated February 1, 2002 was awarded to him whereby
he was accorded the privilege to lease a room at the LCP's Doctor's
Clinic which he used in the private practice of his profession of
medicine.
3.) Whether or not Executive Director Dr. Fernando A.
Melendres has unlawfully entered into the Sports Consultant Services
Agreement with Mr. Godfrey S. Monsod to the prejudice of the government.
4.) Whether or not Executive Director Dr. Fernando A.
Melendres is arbitrary in the granting and denying [of] the privilege
to some doctors to engage in private practice of medicine, thereby
causing undue injury to the parties.
5.) Whether or not executive Director Dr. Fernando A.
Melendres has committed falsification of documents in the hiring of
architectural consultant in the person of Architect Federico R. Medina
thereby caused (sic) non-professionalism, dishonesty and grave
misconduct.
6.) Whether or not Executive Director Dr. Fernando A.
Melendres has implemented without authority a reorganized plan which is
unapproved by the Board of Trustees, thereby committing grave abuse of
authority that [is] tantamount to non-professionalism, serious
misconduct and a conduct which is prejudicial to the best of (sic)
interest of the service.
7.) Whether or not Executive Director Dr. Fernando A.
Melendres has made questionable appointments and demoted several times
the complainant Jose Pepito Amores, to the prejudice of the parties
concerned and which constitutes (sic) non-professionalism and a conduct
that is prejudicial to the best interest of the service.
8.) Whether or not Executive Director Dr. Fernando A.
Melendres has committed immorality by living together with a woman [who
is] not his legal wife and having a child with her, thereby showing
unjustness, insincerity, and a disgraceful and immoral conduct.
DISCUSSION
AS TO THE FIRST ISSUE:
Whether or not Executive Director Dr. Fernando A. Melendres has caused
undue injury to the Lung Center of the Philippines, including the
Government, in the procurement of the presentation banner without
public bidding comp with falsification of documents.
The procurement and/or purchase of the presentation banner were made
without going through the process of the required public bidding.
The contention of respondent Fernando A. Melendres that the commission
of Luis and Associates by the Lung Center of the Philippines (LCP) to
do the presentation banner did not prejudice the government is of no
merit.
Further, the claim of respondent Fernando A. Melendres that the
procurement of the presentation banner subject of the instant case is
an exception to the public bidding requirement considering that no
other group could have done said undertaking in the least cost, if at
all, does not hold any water.
Upon careful perusal and study of the allegations and the documents
submitted, it was shown that the said presentation banner merely
consisted of the portrait of the President of the Philippines Her
Excellency Gloria Macapagal-Arroyo at the top, and with the building
landscape supposedly, representing the Lung Center of the Philippines
at the bottom with the words "Total State of the Art, Peace and Care
for every Filipino".
Such an ordinary conception of work cannot be treated as exclusive one
and the brainchild of Luis And Associates for any other commissioned
artists could have done it, hence the same cannot be considered as a
valid exception to the public bidding requirement.
Under Executive Order No. 301 and Sec. 365 of the Government
Accounting and Auditing Manual (GAAM), Vol. 1, it is so provided that
"negotiated purchase are made when the requisitioned articles are sold
by an exclusive dealer, publisher, or manufacturer which does not have
sub-dealers selling at lower prices and for which no suitable
substitutes of the supplies/equipments can be obtained at more
advantageous terms to the government, if the same was procured from a
sole distributor."
It is very clear from the above-quoted provision that the procurement
of the presentation banner subject of the instant case does not fall
within its context and cannot be considered an article that can be
acquired only from an exclusive manufacturer or distributor, hence not
an exception to the public bidding requirement.
On the other hand the contention of respondent Fernando A. Melendres
that there was no falsification of documents to cover any anomalies
thereto is untenable.
The irregularity is evident as shown by the fact that the canvass for
the said undertaking was made only after the delivery of the
presentation banner. It must be noted that the delivery was made on
November 27, 2001, while the purported canvass was done on December 3
and 4, 2001. Glaring is the fact that the canvass was never used as the
means or mode to procure the said presentation banner contrary to what
has been reflected in the records.
AS
TO THE SECOND ISSUE:
Whether or not Executive Director Dr. Fernando A. Melendres has caused
prejudice and undue injury to the government when the Contract of Lease
dated February 1, 2002 was awarded to him whereby he was accorded the
privilege to lease a room at the LCP's Doctor's Clinic, which he used
in the private practice of his profession of medicine.
Respondent Fernando A. Melendres does not deny the fact that he leased
a room at the Lung Center of the Philippines (LCP) Doctor's Clinic,
which he used in the private practice of his profession of medicine.
While it is true that respondent Fernando A. Melendres is paying the
proper rental fees for the lease of a room at LCP Doctor's Clinic, the
fact remains that he is using a government property for his private and
professional purpose without the authority from the LCP Board of
Trustees, which is prejudicial not only to the government service as a
whole but has caused even demoralization to the other
physicians.
This is a bad precedence, which accorded a certain privilege to a
particular person using the government facilities to his personal
advantage and without even the authority from the Board of Trustees.
Respondent Fernando A. Melendres has welded (sic) his influence and
power as the Executive Director of the Lung Center of the Philippines,
using such power for him to be accorded certain benefits at the expense
of the government and the people as well.
Basic is the principle of law that no person is allowed to enrich
himself unjustly at the expense of others, more so on the part of the
government. (Tan vs. Largo, SP-08417, June 30, 1986)
AS
TO THE THIRD ISSUE:
Whether or not Executive Director Dr. Fernando A. Melendres has
unlawfully entered into the Sports Consultant Services Agreement with
Mr. Godfrey S. Monsod to the prejudice of the government.
The allegation that respondent Fernando A. Melendres entered into a
Sports Consultant Services Agreement with Mr. Godfrey S. Monsod without
the authority to hire and without any justification is without merit.
The fact is that the Executive Committee of the Lung Center of the
Philippines is the body that reviewed the qualifications of Mr. Godfrey
Monsod and thereafter duly hired him as sports consultant on November
13, 2001.
It is so provided under the By-Laws of the Lung Center of the
Philippines that the Executive Committee is the body with the
recommendatory power to authorize the Executive Director to act. Hence,
in entering a contract of consultancy with Mr. Godfrey Monsod,
respondent Fernando A. Melendres is cloth with the mantle of authority
accorded to him by the Executive Committee.
Such act of respondent Fernando A. Melendres constitutes purely a
ministerial act, which an officer performs in a given state of facts,
in a prescribed manner, in obedience to the mandate of legal authority,
without regard to, or the exercise of his own judgment upon the
propriety or impropriety of the act done. (Lamb vs. Phipps, 22 Phil.
489)
AS
TO THE FOURTH ISSUE:
Whether or not Executive Director Dr. Fernando A. Melendres is
arbitrary in the granting and denying the privilege to some doctors to
engage in private practice of medicine, thereby causing undue injury to
the parties.
As to the allegation that respondent Fernando A. Melendres has caused
injury to the complainants by arbitrarily denying to them the privilege
of engaging in private practice of medicine is not substantiated in
fact and in law.
While it is true that there is some discrimination on the part of
respondent Fernando A. Melendres in the grant and denial of the
privilege to engage [in] the private practice of medicine, the
complainants failed to substantiate their claim of injury caused by the
said discrimination.
AS
TO THE FIFTH ISSUE:
Whether or not executive Director Dr. Fernando A. Melendres has
committed falsification of documents in the hiring of architectural
consultant in the person of Architect Federico R. Medina thereby caused
(sic) non-professionalism, dishonesty and grave misconduct.
In the instant case, there were two (2) Architectural Service
Agreements entered into by and between Dr. Fernando A. Melendres for
the Lung Center of the Philippines with Architect Federico R. Medina.
The first contract dated June 1, 2000 has the duration of seven (7)
months that commenced on June 1, 2000 until December 31, 2000.
Perusal of the documents showed that the same contract was notarized on
July 30, 2000 but it was only on July 27, 2001 whereby Dr. Jose Pepito
Amores, being a member of the Executive Committee, affixed his initials
on it.
As can be gleaned from the documents submitted, it revealed the fact
that the Architectural Service Agreement was antedated.
Indeed, falsification of the public document can be adduce therefrom
for the fact remains that respondent Fernando A. Melendres is the
signatory of the said document, thereby he cannot feign ignorance nor
pretend that he knows nothing as to the circumstances surrounding or
attending to the execution of the said document.
The second contract dated January 1, 2001 has the duration of one year
that commenced on January 1, 2001 until December 31, 2001 and was
notarized on July 30, 2001.
Complainant Dr. Jose Pepito Amores affixed his initials on the said
second contract under the name of respondent Fernando A. Melendres also
on July 27, 2001.
It is observed that complainant Dr. Jose Pepito Amores has initialed
the first and second Architectural Service Agreements, which were
executed in different dates, on the same date of July 27, 2001.
Thereafter, respondent Fernando A. Melendres on May 31, 2001, issued
Center Order No. 152, series of 2001 extending the service of Architect
Medina from June 1, 2001 to December 31, 2001.
Careful perusal and study of the documents evidently showed and exposed
the irregularity in the execution of the second Architectural Service
Agreement.
It must be noted that it is unnecessary for the issuance of Center
Order No. 152, series of 2001, which extended the contract of Architect
Federico R. Median, for there was nothing to extend in the first place
since the duration of the second Architectural Service Agreement dated
January 1, 2001 was for a period of one year, that is from January 1,
2001 to December 31, 2001, which also embraced the period covered in
the said Center Order.
Following the line of the above-stated reasoning, it can be adduced
therefrom that the second Architectural Service Agreement dated January
1, 2001 was not really commenced as of the time of its alleged
execution on January 1, 2001 or that the purpose of its execution is
only to cover the period from January 1, 2001 to May 31, 2001 and not
the whole one-year of 2001.
Evidently, it is a glaring indication that there was falsification
committed in the instant case, which consists of the purported
execution of the second Architectural Service Agreement.
Worthy to note further that the second Architectural Service Agreement
dated January 1, 2001 was notarized only on July 30, 2001 when in fact,
in the normal course of things the notarization should have been done
on January 1, 2001 or on a date near it.
That is another indication that indeed falsification is committed in
the instant case, which consists in the falsity of the date of
execution, the evident truth being that it was signed and executed on
July 30, 2001 and not on January 1, 2001.
It has also been a matter of procedure and practice that before a
signatory affixes his signature to a document, like in the case of a
contract, a subordinate who is supposed to have reviewed the document
affixes his initials on the same first. In other words, when a
subordinate affixes his initials, logically the party-signatory has not
yet sign (sic) the subject document. Hence, this fact is indicative of
the falsification committed on both the first and second Architectural
Service Agreements.
The inevitable conclusion is the two contracts were not actually signed
and executed on the dates indicated in those documents as their dates
of execution, that is, June 1, 2000 for the first contract, and January
1, 2001 for the second contract.
There was indeed falsification committed by the signatories thereto,
not only by the respondent Fernando A. Melendres but that includes
complainant Dr. Jose Pepito Amores who must have known the
circumstances surrounding the execution of the two contracts.
Respondent Fernando A. Melendres has become a party to such
falsification, either by deliberate design or through gross inexcusable
negligence, having signed the two Architectural Service Agreements
under the prevailing circumstances at that time.
AS
TO THE SIXTH ISSUE:
Whether or not Executive Director Dr. Fernando A. Melendres has
implemented without authority a reorganization plan which is unapproved
by the Board of Trustees, thereby committing grave abuse of authority
that [is] tantamount to non-professionalism, serious misconduct and a
conduct which is prejudicial to the best of (sic) interest of the
service.
Respondent Fernando A. Melendres undertook certain measures for the
purpose of effecting improvements and reforms in the LCP by causing the
preparation of a reorganization plan or a new organizational structure,
which he discussed with the Executive Committee and the Board of
Trustees of LCP.
While the Board of Trustees required him to submit a formal proposal
for reorganization, no such reorganization plan or new organizational
structure was submitted to and approved by the Board.
It must be noted that even before respondent Fernando A. Melendres
could submit the required reorganization proposal for the approval of
the Board of Trustees, he already started what he called functional
reorganization by designation since there was no formal reorganization
yet.
In effect, there was movement of personnel in the nature of
reassignments and designations as the officials and employees concerned
retained their original positions.
Notwithstanding the objective or purpose for which the movement and/or
reassignment of personnel was done, the fact remains that there was no
clear-cut concept of such movement, whether is it re-engineering or
reorganization in the real sense of the word.
Respondent Fernando A. Melendres even admitted that in the latter half
of 2001, he used the new or second organizational structure in giving
designations to the different physicians of LCP, which was not yet
approved by the Board of Trustees.
Hence, it can be gleaned therefrom that respondent Fernando A.
Melendres committed an indiscreet act and judgment for having
conducted, a reorganization sans the required prior approval of the
Board of Trustees, despite the fact that there were no demotions
involved within the meaning of definition or this term.
AS
TO THE SEVENTH ISSUE:
Whether or not Executive Director Dr. Fernando A. Melendres has made
questionable appointments and demoted several times the complainant
Jose Pepito Amores, to the prejudice of the parties concerned and which
constitutes (sic) non-professionalism and a conduct that is prejudicial
to the best interest of the service.
Complainant Dr. Jose Pepito Amores in the instant case failed to
substantiate his allegation that he was demoted for several times.
While it is true that by the issuance of certain Center Orders by
respondent Fernando A. Melendres, some of the functions and duties of
complainant Dr. Jose Pepito Amores were diminished, the fact remains
that the latter retained his actual position as Deputy Director for
Hospital Support Services.
The term "Demotion" as defined under Sec. 11, Rule VII of the
Omnibus Civil Service Rules, promulgated on December 27, 1991, is "the
movement from one position to another involving the issuance of an
appointment with diminution in duties, responsibilities, status or rank
which may or may not involve reduction of salary".
In the instant case, Dr. Amores was not moved, transferred from one
position to another, neither there was an issuance of an appointment
for a new position within the context of the above-quoted provision of
law.
The fact is complainant Dr. Jose Pepito Amores remained and retained
his position as Deputy Director for hospital Support Services.
While certain Center Orders issued by respondent Fernando A. Melendres
adversely affected Dr. Amores particularly some of his original
functions, nevertheless there was no in fact a demotion of his rank.
The diminution of the functions and responsibilities of complainant Dr.
Jose Pepito Amores does not tantamount (sic) to demotion of his actual
rank.
AS
TO THE EIGHT ISSUE:
Whether or not Executive Director Dr. Fernando A. Melendres has
committed immorality by living together with a woman [who is] not his
legal wife and having a child with her, thereby showing unjustness,
insincerity, and disgraceful and immoral conduct.
While it may be true that during his marriage respondent Fernando A.
Melendres has sired a child with his mistress, named Gigi Facundo
Lorenzo, as evidenced by the attached copy of the National Statistic
Office (NSO) certified birth certificate of certain Ma. Victoria
Facundo Lorenzo, *born on 11 December 1998, whereby the respondent is
listed as the father of the child, yet there is no substantial evidence
to prove that Melendres and Lorenzo were living together as alleged.
FURTHER
DISCUSSION
On the issue that Executive Director Dr. Fernando A. Melendres violated
the auditing rules on the drawing of petty cash advances to circumvent
the law on public bidding of infrastructure projects:
The issue involves non-observance and/or violation of certain
provisions of the Government Accounting Auditing Manual (GAAM), and the
rules and regulations of the Commission on Audit (COA).
Hence, it is beyond the jurisdiction of the Commission to resolve such
issue that falls squarely within the ambit of another forum like the
Commission on Audit (COA).
On the issue that respondent Unlawfully/Excessively availed of gasoline
expenses:
The records of the case failed to sufficiently substantiate such
allegation.
Moreover, the non-submission of trip tickets pertains to the observance
and application of the rules and regulations of the Commission on Audit
(COA), which is beyond the jurisdiction of the Commission.
On the issue that respondent used LCP funds in the payment of the
personal use of his cellular phone.
The issue pertains to certain benefits and privileges granted by the
Board of Trustees to the Directors of Specialty Hospitals like the Lung
Center of Philippines, and this also involves Civil Service rules and
other pertinent laws granting benefits to government officials and
employees for their convenience.
Hence, the determination of the legality of the act is beyond the
jurisdiction of the Commission.
On the issue that the issuance of Center Order Nos. 155-A, Series of
2001 and No. 55, Series of 200 were illegal/unlawful:
The issuance of Center Orders is merely an exercise of the ministerial
function of the Executive Director of the Lung Center of the
Philippines, thus the determination of whether or not such Center
Orders are valid or not is beyond the jurisdiction of the Commission.
On the issues that there were pending cases with the ombudsman against
the respondent and the alleged drug abuse of Dr. Fernando A. Melendres:
The pending cases against Dr. Fernando A. Melendres before the Office
of the Ombudsman are separate and distinct, and cannot in anyway affect
the independence of the Commission in the conduct of its formal inquiry.
Finally, to determine whether or not Executive Director Dr. Fernando A.
Melendres has been using drugs particularly Demerol is not within the
technical expertise, competence and jurisdiction of the Commission.
CONCLUSION
After a thorough perusal of the records of the case and a lengthy
discussion, taking into consideration of every detail presented by both
parties on the basis of the laws allegedly transgressed thereto, the
Commission is of the conclusion that respondent Fernando A. Melendres
has committed the following:
First, in the procurement of the presentation of banner without going
through the public bidding requirement and even resorted to some
falsification of public documents, respondent Fernando A. Melendres has
clearly violated Sec. 3(e) of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices for having
caused undue injury to the whole Lung Center of the Philippines (LCP),
including the government, and by giving Luis and Associates unwarranted
benefits, advantage or preferences in the discharge of his official and
administrative functions through manifest partiality, evident bad faith
and gross inexcusable negligence.
Respondent Fernando A. Melendres, as a consequence of his actions,
failed to perform and discharge his duties with the highest degree or
excellence and professionalism as expected of high ranking official, in
violation of Sec. 4 (A)(b) of Republic Act No. 6713, otherwise known
as the Code of Conduct and Ethical Standards for Public Officials and
Employees.
The act of respondent Fernando A. Melendres in such procurement of
presentation banner sans the required public bidding comp (sic) with
falsification of documents also constitutes gross misconduct,
dishonesty and falsification of official documents, in violation of
Sec. 46(b)(4), (1) and (13), Chapter 6, Subtitle A, Title I, Book V
of Executive Order No. 292, otherwise known as the Administrative Code
of 1987.
Further, respondent Fernando A. Melendres has transgressed Article 171
of the Revised Penal Code, Falsification of a Public Officer, Employee,
or Notary or Ecclesiastic Minister, which specifically provides that
"any public officer, employee or notary who, taking advantage of his
official position, shall falsify a document by committing any of the
following acts: . . . (6) Making any alteration or intercalation in
genuine document which changes its meaning."
Second, respondent Fernando A. Melendres has caused prejudice and undue
injury to the government, in violation of Sec. 3 (e) of Republic Act
No. 3019, when he accorded unto himself the privilege to lease a room
at the LCP's Doctor's Clinic which he used in the private practice of
his profession of medicine.
Taking advantage of his rank and authority to enjoy certain privileges,
respondent Fernando A. Melendres failed to uphold the public interest
over and above his personal interest as a clear contravention of
Sec. 4 (A) (a) of Republic Act No. 6713.
Further, such act constitutes a conduct prejudicial to the best
interest of the service, as enunciated under Sec. 46 (b) (27),
Chapter 6 Subtitle A, Title I, Book V of Executive Order No. 292.
Third, respondent Fernando A. Melendres has committed falsification of
documents as can be gleaned from the two (2) Architectural Service
Agreements entered into by and between Fernando A. Melendres for the
Lung Center of the Philippines, with Architect Federico R. Medina
subject of the instant case (sic).
In the case at bar, respondent again violates Article 171 of the
Revised Penal Code, Falsification of a Public Officer, Employee or
Notary or Ecclesiastic Minister, specifically ". . . (5) Altering true
dates and (6) Making any alteration of intercalation in a genuine
document which changes its meaning."
Further, such actuation of the respondent is a clear manifestation of
non-professionalism in contravention of Sec. 4 (A) (b) of Republic
Act No. 6713, and also constitutes dishonesty and gross misconduct, in
violation of Sec. 46 (b) (1) and (4), Chapter 6, Subtitle A, Title
I, Book V of Executive Order No. 292.
Finally, respondent Fernando A. Melendres, in implementing and
executing a reorganization plan without the authority and approval of
the Board of Trustees, has committed thereby grave abuse of authority
that [is] tantamount to non-professionalism as enunciated in Sec. 4
(A) (b) of Republic Act No. 6713, serious misconduct and a conduct
which is prejudicial to the best interest of the service, as clearly
stated in Sec. 46, (b) (4) and (27), Chapter 6, Subtitle A, Title I,
Book V of Executive Order No. 292.
WHEREFORE, premises considered, this Commission recommends to Her
Excellency President Gloria Macapagal-Arroyo the DISMISSAL FROM THE
SERVICE of the respondent Dr. Fernando A. Melendres, with forfeiture of
all his government financial benefits and disqualification to be
re-appointed to any position in the government service."
After a careful review of the records of the case, this Office finds
that PAGC's findings and recommendations as contained in its
investigation report are in order.
Preliminary, it must be pointed out that PAGC correctly denied
respondent Executive Director Melendres' motions for a formal hearing
and for inhibition. A formal hearing is not a mandatory requirement of
due process in administrative proceedings. One may be heard not solely
by verbal presentation, but also, and perhaps even many times
creditably and practicably than oral argument, through pleadings. Thus,
it is enough that the parties are given the opportunity to be heard by
means of the submission of pleadings, memoranda and/or position papers
(PAL v. NLRC, 198 SCRA 748 [1991]; Concerned Officials of MWSS v.
Vasquez, 240 SCRA 502 [1995]). In fact, aside from counter-affidavit,
respondent Executive Director Melendres was also required by PAGC to
submit his position paper but he failed to do so. Such failure amounts
to a waiver to present addition evidence on his behalf. It is,
therefore. puzzling why respondent Executive Director was asking for a
full-blown formal hearing when he could not even submit a position
paper. Moreover, in his counter-affidavit, respondent Executive
Director Melendres admitted that "the same complaint [subject of this
case] had already been investigated, reviewed, evaluated, heard, and
terminated by the [Fact-Finding] Committee [created by Secretary Manuel
M. Dayrit of the Department of Health]" (Counter-Affidavit, p. 25;
Records, Folder 1, p. 3-4). Thus, one may validly ask why respondent
Executive Director Melendres wanted another full-blown investigation.
Undoubtedly, the inescapable conclusion that can be made from the
filing of the motion for a formal hearing is that respondent Executive
Director Melendres was merely buying time by trying to prolong the
disposition of the case in order to unduly perpetuate himself as the
head of the Lung Center of the Philippines.
On the other hand the denial of the motion for inhibition against
Commissioner Cesar Buenaflor for alleged bias and impartiality is in
order considering that the grounds adduced arc not grounds for
mandatory disqualification or inhibition of judges. Rule 137, Sec. 1
of the Rules of Court enumerates the grounds for the absolute
disqualification of judges, to wit:
"No
judge or judicial officer shall sit in every case in which he, or his
wife or child, is pecuniarily interested as heir, legatee, creditor, or
otherwise, or in which he is related to either party within the sixth
degree of, consanguinity or affinity, or to counsel within the fourth
degree, computed according to the rules of the civil law, or in which
he has been executor, administrator, guardian, trustee or counsel, or
in which he has presided in any inferior court when his ruling or
decision is the subject of review, without the written consent of all
parties in interest, signed by them and entered upon the record."
This rule enumerates the grounds under which a judge is legally
disqualified from sitting in a case, and excludes all other grounds not
specified therein (Velez v. Court of Appeals, 34 SCRA 109; Pimentel v.
Salonga, 21 SCRA 160 [1969]). The judge may, however "in the exercise
of his sound discretion, disqualify himself from sitting in a case, for
just or valid reasons other than those mentioned above (Rule 173,
Sec. 1, Rules of Court). Hence, the decision to inhibit is left to
the sound discretion of the judge himself. No one has the right to
supplant the exercise of such discretion provided the exercise of the
same is devoid of grave abuse.
As correctly found by PACC, respondent Executive Director Melendres is
guilty of illegal procurement of presentation banner comped with
falsification of public documents, taking advantage of his position to
accord unto himself the privilege to lease a room at the LCP's Doctor's
Clinic in order to engage in the private practice of medicine without
the approval from LCP's Board of Trustees, falsification of documents
in the execution of two (2) Architectural Service Agreements and
implementation of a reorganization plan without authorization from
LCP's Board Trustees. Noteworthy is the fact that each of these
offenses is considered a grave offense meriting the supreme penalty of
dismissal from the service considering that the said offenses involve
dishonesty, grave misconduct, and falsification of documents.
Sec. 22 of Rule XIV of the Omnibus Rules Implementing Book V of
Executive Order (E.O.) No. 292, otherwise known as the Administrative
Code of 1987, states that dishonesty, grave misconduct, and
falsification of official documents are grave offenses with the
corresponding individual penalty of dismissal from the service even if
the respondent committed the same for the first time. This is so
because the policy of the State is to promote a high standard of ethics
in the public service wherein public officials and employees should at
all times be accountable to the people and should discharge their
duties with utmost responsibility, integrity, and competence (Sec. 2, Republic Act No. 6713). Respondent Executive Director Melendres
unmistakably breached this State policy.
In fact, the nature and the totality of respondent Executive Director
Melendres' commission of the aforementioned offenses make him
notoriously undesirable to remain in the public service. Appropriately,
the penalty of dismissal from the service that is hereby imposed on
respondent Executive Director Melendres carries with it the
cancellation of his eligibility, the forfeiture of his leave credits
and retirement benefits, and the disqualification from re-employment in
the government service in the future pursuant to Sec. 9 Rule XIV of
the Omnibus Rules Implementing Book V of the Administrative Code of
1987.
WHEREFORE, as recommended by the Presidential Anti-Graft Commission,
respondent Executive Director FERNANDO A. MELENDRES is hereby DISMISSED
FROM THE SERVICE, with forfeiture of his leave credits and retirement
benefits, and disqualification from re-employment in the government
service, effective immediately upon receipt of this order.
SO ORDERED.
Done in the City of Manila,
this 4th day of February, in the year of Our Lord, year two thousand
and three.
* Copied verbatim from documents obtained directly
from Malacañang records. (with missing portion)
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