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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 93 -
DISMISSING FROM THE SERVICE, WITH FORFEITURE OF RETIREMENT AND OTHER
BENEFITS, NICANOR P. JACINTO III, CHAIRMAN OF THE PHILIPPINE RACING
COMMISSION, FOR GRAVE MISCONDUCT, NEGLECT OF DUTY, INEFFICIENCY AND
INCOMPETENCE IN THE PERFORMANCE OF OFFICIAL DUTIES, AND CONDUCT
PREJUDICIAL TO THE BEST INTEREST OF THE SERVICE
This pertains to the administrative charge
against Nicanor P. Jacinto III, Chairman of the Philippine Racing
Commission (hereinafter, "Philracom") for grave misconduct, neglect of
duty, inefficiency and incompetence in the performance of official
duties, and conduct prejudicial to the best interest of the service.
Respondent Nicanor Jacinto III was preventively suspended for a period
of ninety (90) days, under a Memorandum dated 12 May 1993, signed by
the Chief Presidential Legal Counsel, on the basis of the Report of the
Fact-Finding Committee (hereinafter, "Fact-Finding Committee" created
pursuant to Memorandum Order No. 125 dated March 20, 1993, which was
tasked to investigate, and submit its report and findings to the
President on certain reported anomalies within the Philracom
involving, among others, the alleged mishandling of declaration fees
and prizes of the day collection (hereinafter, "Declaration Fund"), and
prize-switching.
Respondent Jacinto was informed that the Philracom Investigating
Committee (hereinafter, "Committee") created pursuant to Memorandum
Order No. 130 dated May 12, 1993, which was tasked with the
investigation of the charges levelled against certain officials and
employees of the Philracom, will investigate the administrative charges
levelled against him; that he was required to submit to the Committee
his verified Answer to said charges within ten (10) days therefrom;
and, that his failure to do so will be construed as a waiver on his
part to submit an Answer or to be heard, in which case the Committee
shall deem the case submitted on the basis of the aforementioned report
and other documents at hand.
On 4 June 1993, Respondent Jacinto was served, through counsel, with a
notice of hearing scheduled on 14 June 1993.
In his Answer filed, through counsel, on 11 June 1993, Respondent
Jacinto denied all the charges preferred against him and in support
thereof he alleged that the Declaration Fund are not public funds, but
are private funds; that, assuming arguendo that such Fund is public in
character, his acts should be considered as having been done in good
faith; and that, since the persons who allegedly witnessed the alleged
switching of prizes in the 13 September 1992 PCSO Sweepstakes and PCSO
Sponsored Stakes Races have not filed a complaint, Respondent Jacinto
should not be called upon to respond thereto.
The Declaration Fund consists of the declaration fees paid by
horseowners as a guarantee or commitment of their horses' actual
participation in a particular race. Between January 1986 to October
1992, it is estimated that the two racing clubs, Manila Jockey Club,
Inc. and Philippine Racing Club, Inc., collected revenues covering
declaration fees/prizes of the day in the amount of P16.4 Million.
The issues having been joined, the Committee conducted a series of
hearings to receive the evidence of both the Prosecution and Respondent
Jacinto.
At the 14 June 1993 hearing, the ground rules for the hearings of the
administrative case were adopted, upon agreement of the parties. The
next hearing was set on 24 June 1993.
At the 24 June 1993 hearing, Respondent Jacinto's counsel was furnished
with a copy of the Affidavit of Rafael R. Lagos, Chairman of the
Fact-Finding Committee.
On 25 June 1993, the Prosecution presented Rafael R. Lagos as its lone
witness; but due to lack of material time, the presentation of the
Prosecution's evidence was not finished. It was continued and
terminated on 1 July 1993.
In the said 1 July 1993 hearing, the Prosecution made its verbal Formal
Offer of Evidence — to which offer of evidence, Respondent Jacinto's
Counsel made a verbal manifestation that he will file a written formal
Opposition thereto.
The
Prosecution presented the following evidence:
1.
2.
3.
4.
5.
On 6 July 1993, Respondent Jacinto filed before the Committee his Opposition to the Prosecution's Formal Offer of Evidence alleging that the evidence offered by the Prosecution is hearsay and self-serving because its witness had no personal knowledge of the facts stated in his Affidavit considering that he learned the same only from statements given him by third persons who were not even presented or cross-examined by the former during the Committee proceedings.
On 9 July 1993, the Committee issued an Order admitting the Prosecution's Offer of Evidence.
On 14 July 1993, Respondent Jacinto filed a Motion for Reconsideration of the aforesaid Order, claiming that the admission of the Prosecution's evidence is tantamount to depriving him of his right to cross-examine the witnesses against him thereby violating his constitutional right to due process. Respondent Jacinto reiterated his claim that the Affidavit of Rafael Lagos cannot be admitted in evidence because it is self-serving and its contents are hearsay.
On 19 July 1993, the aforesaid Motion for Reconsideration was denied by the Committee for lack of merit.
On 21 July 1993, Respondent Jacinto filed a Special Civil Action for Certiorari with a prayer for a writ of preliminary injunction and restraining order before the Regional Trial Court of Manila, Branch VI, docketed therein as SP No. 93-66841.
On 22 July 1993, the aforesaid Regional Trial Court issued a restraining Order thereby temporarily restraining/enjoining the Chairman and members, as well as the Prosecutor, of the Committee from proceeding in any way with Administrative Case Nos. 010-93 and 020-93 until the Court will have determined whether or not a writ of preliminary injunction will be issued.
On 11 October 1993, after the lapse of the TRO, the Committee issued an order setting the instant case for another hearing on 15 October 1993, 2:30 P.M. at which time Respondent Jacinto was directed to submit his position paper/sworn statement, in lieu of his direct testimony. But at said scheduled hearing, instead of complying with the Committee's order as contained in the Notice of Hearing dated 11 October 1993, Respondent Jacinto, through counsel, merely requested for the deferment of the hearing until after the injunction case is resolved.
Said request was vigorously opposed by the Prosecution on the ground that Respondent Jacinto has violated the status quo by his announced assumption into office at the Philracom last 22 September 1993, as well as the previous agreement of the parties that "upon resumption of hearing, no further request for extension/resetting shall be entertained by the Investigating Committee."
Finding merit in the opposition of the Prosecution, the Committee considered the case submitted for resolution.
This Office agrees with the findings of the Committee, with respect to the procedural matters, as follows:
"1.
"2.
"3.
"During the hearings conducted
by the Committee, Respondent Jacinto has always been represented by
counsel. He has all the chances to confront and cross-examine the
witnesses against him. This, he or his counsel did not do. Instead,
Respondent Jacinto's counsel merely kept on harping about the
inadmissibility of Chairman Lagos' testimony allegedly for being
hearsay and self-serving.
"4.
"Similarly, it was held that
there was no denial of due process where petitioner had many
opportunities and had been afforded adequate hearing to argue his case
(Pulido v. Lazaro, 158 SCRA 107).
"5.
"6.
This Office further agrees with the findings of the Committee with respect to substantive matters as follows:
"1.
"2.
"3.
"4.
"5.
"6.
"7.
"8.
"The only disbursements
authorized from the aforesaid Declaration Fund, by Board Resolution No.
79, were for the following exclusive purposes:
1.
2.
3.
4.
"Nowhere
in the aforesaid Resolution is there mention about the fund being a
private fund.
"Moreover, even granting that
said Resolution in fact legally converted part of the Fund from public
to private, still the withdrawals and disbursements made were in fact
violative of the same Resolution, for payment of salaries and
allowances to the Board of Stewards and Board of Judges; bonuses to
Philracom officers and employees, purchases of certain Philracom
supplies and equipment, etc. are not included in the above enumeration.
"9.
"It was only on 11 January 1993
when COA issued its official statement on the subject, in reply to the
request of the Chairman of the House Committee on Games and Amusement
for a legal opinion on the nature of the aforesaid Fund. And COA's
categorical positions is that the Declaration Funds is public, not
private.
"But the questioned withdrawals
and disbursements made or authorized by Respondent Jacinto occurred as
early as March 1990, when the latter was appointed Chairman of
Philracom.
"10.
"What Auditor Aguirre admitted
is just the "claims and insistence" by the Philracom and the Racing
Clubs that the said Fund is private, hence, he was not able to audit it
(Exh. "E"-28, p. 12. TSN, March 31, 1993, Fact-Finding Committee)
"11.
"The Racing Clubs themselves,
through their respective presidents, admit that they have "no say in
the funds" and the one "who owns the funds and disburse them" is
Philracom, (pp. 6; 11, TSN, March 31, 1993, Fact-Finding Committee).
"Moreover, the Fund is
"disbursable" for Philracom purposes only (vide, Board Resolution No.
79, supra).
"The only reason why said Fund
remained in the hands of the Racing Clubs is precisely because of the
aforequoted Board Resolution which authorized the Racing Clubs to
retain and even spend it but only of any of the four (4) specific
purposes enumerated thereunder.
"12.
"With or without any complaint,
Respondent Jacinto should be held liable — if his culpability on this
charge is proven.
"However, his direct
participation or conspiracy in the switching of prizes during the
aforesaid event has not been clearly established.
"But his omission, as the
Chairman of Philracom, and his failure to stop the commission of this
patent irregularity during an event he himself personally witnessed and
wherein his horse participated, amount to neglect of duty, and
inefficiency and incompetence in the performance of official duties".
Based of the foregoing, this Office finds Respondent Nicanor P. Jacinto III GUILTY of grave misconduct, neglect of duty, inefficiency and incompetence in the performance of official duties, and conduct prejudicial to the best interest of the service.
WHEREFORE, premises considered, Nicanor P. Jacinto III is hereby DISMISSED from the government service with forfeiture of retirement and other benefits.
DONE
in the City of Manila, this 6th day of November in the year of Our
Lord, Nineteen Hundred and Ninety-Three.
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