REPUBLIC OF THE PHILIPPINES CIVIL SERVICE COMMISSION Constitution Hills, Quezon City

JUAN MIGUEL LUZ, Appellant, -versus- Case No. THE EXECUTIVE SECRETARY EDUARDO ERMITA, Appellee. x------------------------------------------x

Prefatory Statement

Integrity, competence, love of country and dedication to public

service are qualities expected of all public servants. Yet, those who

possess these are often not only unrewarded, but also punished for

standing up for their principles. In a government where politics can kill

a public servant’s dedication and enthusiasm for service, the principles

of merit, fitness, and security of tenure as well as the rules of the Civil

Service Commission are often on a collision course with the demands of

politics and politicians.

This Appeal by Juan Miguel Luz is a classic case of a good and

honest civil servant, a Career Service Executive Officer, who suffers the

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punishment of termination and later, a transfer, from no less than the

Office of the President for refusing to perform an unlawful act and for

doing what he believed was right.

The Appellant files this Appeal in the fervent hope that the

resolution of the issues in this case will enrich law and jurisprudence,

instill belief in justice and fairness and inspire the few who remain

vigilant in their fight against corruption.

The Case

This is an appeal from the Order of the Honorable Executive

Secretary reassigning Appellant Juan Miguel Luz, a Career Service

Executive Officer and Undersecretary, Finance & Administration of the

Department of Education (hereafter called “DepED”), to the Department

of Labor and Employment (hereafter called “DOLE”).

Timeliness of the Appeal

The Appellant received a copy of the Memorandum of the Appellee

Executive Secretary Eduardo Ermita (hereafter called “Executive

Secretary”) on 04 October 2005, hence this Appeal is being filed on time.

A certified true copy of this memorandum is attached as Annex “A”.

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The Parties

APPELLANT Juan Miguel Luz (hereafter called “Appellant”) is a

Filipino, of legal age, residing at 326 St. Joseph Street, North Concha

Cruz Circle, B.F. Executive Homes, Las Pinas City. He is a Career Service

Officer (CESO) and is fully qualified for the position of Undersecretary of

Education (Finance & Administration) which he is currently occupying.

A certified true copy of his CESO certification is attached as Annex “B”.

Appellant may be served with copies of pleadings, notices, orders and

other issuances of this Honorable Office through undersigned counsel.

APPELLEE Eduardo Ermita (hereafter referred to as the “Appellee”)

is the Executive Secretary who signed the order reassigning the Appellant

to the DOLE.

Facts of the Case

The Appellant’s Qualifications

1. Appellant has sterling qualifications for the position of

Undersecretary of the DepED. His previous employment with

Government prior to his position in the DepED was with the Presidential

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Management Staff (Office of the President) during the Administration of

President Corazon C. Aquino. Outside of government, the Appellant was

the associate director of Philippine Business for Social Progress

(hereafter referred to as “PBSP”), the largest social development NGO in

the country, and in was a professor at the Asian Institute of

Management, one of Asia’s leading business schools.

2. As the associate director of PBSP from 1985-87 and 1993-95,

he headed training, research and programs development and organized

and led the team that drafted the management plan for the Third

Elementary Education Project (TEEP) of the Department of Education,

Culture and Sports funded by the World Bank.

3. In 1987, he was appointed Presidential Staff Director of the

Presidential Management Staff in the Office of the Presient (hereafter

referred to as “PMS”) during the administration of President Corazon C.

Aquino, where he stayed until mid-1991. As head of the Regional

Operations Group and the Political Affairs Group, he worked on a

number of major projects including local government autonomy and the

establishment of the Autonomous Region in Muslim Mindanao. Because

of his experience with PBSP, he was tasked with setting up the newly

created President’s Social Fund (PSF), the source of the post-dated

checks that figured in the events antecedent to the Appellant’s

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“termination” and subsequent reassignment from the DepED to the

Department of Labor and Employment (“DOLE”).

4. In January 1991, Appellant became a Career Executive Service

Officer upon the general instruction of President Aquino that all

presidential appointees secure a CESO eligibility and rank to shield them

from the vagaries of political processes and changes in presidential

administrations and their particular concerns related to appointments.

(See Annex “B” hereof.)

5. After four years in government, Appellant returned to the

private sector. From 1995-97, he was vice president for corporate affairs

at the Far East Bank and Trust Company. From 1998 to February 2002,

he served as director of operations of the APEC Business Advisory

Council, the private sector advisory body to the APEC Leaders.

Concurrently, he was also an Associate Professor at the Asian Institute of

Management from 1997 to 2002.

6. As part of his community work, the Appellant served as

executive director of the Philippine National Museum Foundation, a

private sector foundation that raised funds for the renovation of the

National Museum in time for the country’s Centennial celebrations in

1998. He also served as trustee of the Heritage Conservation Society of

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the Philippines for two terms and is currently a trustee of Museo

Pambata ng Pilipinas.

7. With a Bachelor’s Degree in Liberal Arts from St. Mary’s College

of California1 , a La Salle Christian Brothers institution, and a Master’s

Degree in Public Administration from the John F. Kennedy School of

Government, Harvard University,2 Appellant has expertise in the fields of

community development, government policy, business strategy and

administration, and education management. This is the reason why

former DepED Secretary Edilberto de Jesus invited him to rejoin

government as Undersecretary of Education in late 2002. Appellant

accepted the offer because he wanted to serve his country by

contributing to reforms in the DepED, which in the mid-to-late-1990s

had the reputation of being one of the most corrupt agencies in

government.

8. Appellant reactivated his CESO rank as confirmed by the

Career Executive Service Board. He took charge of the Finance and

Administration of the DepED in November 2002. After Secretary de

Jesus left the DepED in August 2004, the Appellant continued to serve

1 He graduated magna cum laude and garnered two awards for academic excellence – James L. Hagerty Award (School of Liberal Arts) and St. Thomas Aquinas Award (Integral Program). 2 He was an Edward S. Mason Fellow in International Development.

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under former Secretary Florencio B. Abad and OIC Secretaries Ramon C.

Bacani and Fe A. Hidalgo, successively.

Appellant’s contributions to reform in the DepED

9. Appellant carried out major reforms in the areas of finance and

management systems. Notable among these were:

• Providing direct funding releases from the National

Treasury to fiscally-autonomous high schools and

school divisions through the Direct Release System;

• Establishing the DepED Procurement Service;

• Drafting of a new textbook policy, as well as designing

and organizing the National Textbook Delivery Program

to ensure the timely delivery of over 50 million quality

textbooks to close to 42,000 elementary schools;

• Decentralizing the payroll service of elementary school

teachers;

• Fixing the automatic payroll deduction system;

• Re-engineering the Department’s Provident Funds3 in

order to have a professional system

• Forming Brigada Eskwela (National Schools

Maintenance Week), a project undertaking minor

3 The Department Provident Fund has a nationwide portfolio of P1.1 Billion in 16 regions)

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repairs of schools involving various school

stakeholders, the local community, local government

units and the private sector. Brigada Eskwela

significantly minimized problems encountered during

school openings

10. Since 2002, education reforms, both in terms of financial

management and support to academic programs of schools, have helped

establish the image of the Department of Education as one of the five

least corrupt national agencies in the Social Weather Stations’ annual

Enterprise Survey. This has been cause for great pride in DepED

considering that it was formerly one of most corrupt agencies in the

survey prior to that period.4

11. In sum, the Appellant is a highly-educated, competent,

honest, and dedicated public servant. His knowledge, competence and

integrity enabled him to generate significant financial and material

support from the private sector for schools under the Department’s

Adopt-a-School program.

4 During the entire PGMA Administration, no procurement, personnel or financial scandal has rocked the Department. The lone scandal attributed to the Department involved a controversial error-laden textbook procured a decade ago but which are still in the schools. The Department recalled the textbook and put in place a tighter textbook evaluation process to prevent such errors from recurring in public school textbooks in the future.

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12. Then came a defining moment in the Appellant’s career in the

DepED. His integrity was put to a test when he was asked to accept

post-dated checks amounting to P 20 Million from the Office of the

President purportedly intended for a scholarship program of a

congressman. Believing that these were against government accounting

and auditing rules as they were devoid of documentation, he refused to

do what he considered as highly irregular and contrary to law. On

September 9, 2005, the Appellant decided to do the right thing and

returned the checks to Malacanang. As the events unfolded,

Malacanang lost no time in punishing him.

Terminated by Malacanang

13. Appellant’s worries started on 13 September 2005, when his

office received a letter from the Executive Secretary that read: “We wish

to thank you for your services as Undersecretary, Department of

Education, effective immediately”. A copy of this letter is attached as

Annex “C”. Stunned by what was apparently a termination letter, he

sent a query to the Civil Service Commission on 20 September 2005

asking whether or not he was terminated and if such was proper. A copy

of this letter is attached as Annex “D”.

14. On 21 September 2005 Civil Service Commission (hereafter

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referred to as “CSC”) Chairperson Karina Constantino-David wrote him a

letter stating that:

“For an undersecretary position, the qualifications are: Bachelor’s degree, three (3) years supervisory experience and Career Service Executive Eligibility (CSEE) or Career Executive Eligibility (CESE). Considering that you have met all the said requirements, the status of your appointment is permanent. As such, you have security of tenure to the said position. As a permanent official, you cannot be removed from your position by virtue of a mere letter. You may only be removed for cause as provided for by law, and after due process. Considering that the termination letter did not mention any cause or reason for your termination, it is obvious that the Office of the President was working under the mistaken assumption that your appointment was not permanent and thus, you may be separated from the service anytime or at a moment’s notice.”

A copy of Chairperson Karina Constantino-David’s letter is attached as

Annex “E”.

15. On the same date, also responding to Appellant’s query,

Career Executive Service Board (hereafter referred to as “CESB”)

Executive Director Mary Ann Fernandez-Mendoza replied that since the

Appellant did not resign from his position, the letter from the Office of

the President could not be taken to mean termination from the service,

and that the Appellant may continue performing his functions as

Undersecretary of DepED. A copy of this letter is attached as Annex “F”.

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16. Appellant immediately prepared a letter informing the Office of

the President that he was going to continue to perform his duties and

functions as Undersecretary of DepED with no disrespect intended, and

his concerns were focused principally on continuing and expanding

education reforms. A copy of this letter is attached as Annex “G”.

17. Two days later, on 23 September 2005, Malacañang

announced to the media that appellant had been “terminated as

undersecretary (of education) but not as a CESO.” This was modified as

to be “a reassignment to some other government position of same rank.”

This was again modified by the Press Secretary, who stated that

Appellant had resigned as Undersecretary. On the evening of 26

September 2005, the Press Secretary was heard on radio stating that

appellant was being allowed to stay as Undersecretary of education.

Copies of the newspaper clippings are attached as Annexes “H”, “H-1”,

and “H-2”.

18. On 4 October 2005, Appellant received a Memorandum from

the Appellee dated that same day that read: “In the exigency of service,

you are hereby re-assigned from the Department of Education (DepED) to

the Department of Labor and Employment (DOLE) to a position at least

commensurate to your Career Executive Service (CES) rank.” (See

Annex “A”)

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Malacanang’s post dated checques

19. The termination letter of the Executive Secretary received on

13 September 2005 and the Memorandum dated 4 October 2005 were no

doubt sparked by the refusal of the Appellant to accept the POST-DATED

checks from the President’s Social Fund (hereafter referred to as “PSF”)

which were intended for the scholarship program of Congressman

Antonio Diaz (2nd District, Zambales).

20. On 23 August 2005, the DepED received a letter from

Congressman Diaz stating that President Arroyo had approved P20

Million from the PSF to be used for the congressman’s scholarship fund

in the 2nd District of Zambales. Included in the letter was the first P5

Million as a handwritten check drawn against an unmarked non-

commercial account in the Land Bank branch in Malacañang. A copy of

this letter and the proof that this check was deposited to the DepED

OSEC Trust Account is attached as Annexes “I” and “I-1.”

21. The DepED’s Chief Accountant, Mrs. Olivia San Pablo,

immediately called the Appellant to ask what to do with the check.

Baffled, he requested her to show him the check signed by Deputy

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Executive Secretary (DES) Susana Vargas with the handwritten amount

and name of the payee, the Department of Education. The check was

dated 21 August 2005, a Sunday.

22. Incredulous that Malacañang would issue such a handwritten

check, Appellant asked the accountant to call the office of DES Vargas to

inquire if this was in fact a genuine check. After Mrs. San Pablo reported

to him that the Office of the President confirmed the existence of the

check, the Appellant then called Congressman Diaz’s Chief of Political

Affairs staff, Ms. Cora Maestre, to inquire about the purpose of the

amount and the manner of the disbursement. According to Ms.

Maestre, the fund was to be distributed as “scholarship assistance” given

to each public high school student in the congressman’s district at a rate

of P350 per student, notwithstanding the fact that public education is

free and requires no payment of fees.

23. The Appellant was then told that the P5 Million should be

transferred to the Zambales division office which would, in turn, release

the money to the congressman’s office which would then distribute the

same to the student beneficiaries directly. To liquidate this amount, each

student was to have signed a list similar to a teachers payroll list when

the latter receive their payslips and paychecks from the division.

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24. In a telephone conversation, DES Vargas told the Appellant

that she was not privy to the President’s decisions on the PSF but that

the Fund was disbursed solely at the discretion of the President. Hence,

she continued, the scholarship project as discussed by the congressman

must have been in accordance with the President’s instructions.

25. Upon the request of DES Vargas, Appellant agreed to have the

first P5 Million check deposited into the DepED central office trust fund

but then instructed Ms. San Pablo, DepED chief accountant, not to

transfer any funds to the Division of Zambales until the Department

received in writing a clear program of work and the process of

disbursement and liquidation from the congressman’s office.

26. On 2 September 2005, three similar checks of equal amount

(P5.0 M each) were forwarded to the DepED accounting office from the

Presidential Management Staff for deposit and transfer to the same

division of Zambales. The dates on these post-dated checks were 3

September 2005, 3 December 2005, and 3 March 2006. A certified true

copy of these checks are attached as Annexes “J”. The Appellant

noticed that all three were similarly handwritten as the first check in

August though they now bore two signatures, those of DES Susana

Vargas and Erlinda Bautista de Leon as head of the PSF.

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27. The DepED accountant reported to the Appellant that there

was no accompanying documentation with the checks, neither a Special

Allotment Release Order (SARO)5 nor a Notice of Cash Allocation (NCA)6.

Moreover, upon checking with both the Department of Budget and

Management (DBM) and the Commission on Audit (COA), she confirmed

that the acceptance of post-dated checks are against government rules

on accounting and auditing procedures. Upon the request of the

Appellant in a letter dated 06 September 2005, COA Assistant

Commissioner Arcadio Cuenco wrote a letter stating that:

“Please be informed that the issuance and/or receipt of post-dated checks by government agencies is prohibited under GAO Circular No. 68-110 dated October 10, 1968 pertinent portion of which states:

‘Checks presented for payment must be drawn by the payor himself and made payable to the agency or head of agency… Under no circumstance shall the following checks be accepted: (a) checks drawn payable to the name of the agency head or any of its officers, (b) indorsed checks, (c) postdated checks, (d) stale checks, and (e) out-of-town checks, except those which are drawn by the Government or its instrumentalities.’ ” (emphasis supplied)

A certified copy of the letter of the to COA is attached as Annex

“K”. A certified copy of the letter of the Commission on Audit to the

Appellant is attached as Annex “L”. 5 The SARO is the notice from the DBM to a department that informs the latter that funds are now allotted and can be obligated. In effect, the SARO provides the department with the authority to spend funds. 6 The NCA is the notice from the DBM that the cash has been deposited or transferred to the account of the department and can be drawn against. Only at this point in time can a check be prepared and/or released to the payee.

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28. On 6 September 2005, the Appellant received a letter from

Congressman Antonio Diaz dated 5 September 2005 requesting for the

transfer of the two cleared checks (21 August 2005 and 3 September

2005) from the DepED central office trust account to the DepED

Division Office of Iba, Zambales. A certified true copy of this letter is

attached as Annex “ M”.

29. Appellant called DES Vargas on 7 September 2005 to inquire

about the post-dated checks she signed personally delivered by the

congressman’s staff. Her reply was startling. She sounded perplexed by

the Appellant’s query and asked what the dates were on the checks.

When asked why she did not know the dates on the checks being the

signatory, she told the Appellant that she usually pre-signed blank

checks for the PSF but would give these directly to the President. She

said she was not privy thereafter to the details of the checks nor of the

projects for which they were intended. Furthermore, she could not

understand nor explain why two of the checks would be post-dated.

30. On the same day the DepED Chief Accountant called the

Appellant with another urgent matter. The Presidential Management

Staff called her and Mr. Mandy Ruiz, the department’s Chief Budget

Officer, to inquire if another PSF check could be deposited directly to the

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division of Zamboanga del Sur for the projects of Congressman Isidro

Real, thus by-passing the central office in an effort to cut down on the

overall “processing time” for the check.

31. On 08 September 2005, Ms. Maestre of Congressman Diaz’s

office came to inquire if DepEd had deposited the first two checks and if

these could already be transferred to the division office. The Appellant,

not wanting to veer from the proper accounting and auditing procedures,

decided to return the four checks to the President’s Social Fund

including the first one (21 August 2005) already deposited into the

DepED central office trust account and called the department’s Chief

Accountant, Chief Budget Officer and Cashier to his office. The official

receipt for the second check (3 September 2005) was cancelled since this

official receipt had not yet been given to the Office of the President/PMS

and the check had yet to be deposited into the department’s trust

account.

32. Early on 9 September 2005, Friday, a staff of PMS was in the

Appellant’s office waiting to pick up the three checks. The appellant

called Director Marietta Tamondong of the Presidential Management Staff

and informed her that the amount in the first check which had already

been deposited would likewise be returned to PSF but through a DepED

check. A certified copy of the letter documenting the return of the checks

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is attached as Annex “N”. That same day, Appellant informed OIC-

Secretary Fe Hidalgo of these developments and she concurred with his

decision.

33. The day before, Ms. Yvonne Chua of the Philippine Center for

Investigative Journalism (hereafter referred to as “PCIJ”), having heard of

the post-dated checks from her “Malacañang source,” came to see the

Appellant to confirm if there were in fact such checks received by the

Department. This was confirmed by the Appellant. On 11 September

2005, Sunday, she posted the story on the PCIJ weblog site which

became a source of news for other media organizations.

34. Deciding to return all of the checks that constituted the P20M

grant given to Congressman Diaz by the President through the

President’s Social Fund, the Appellant, on 10 September 2005 cancelled

the Disbursement Voucher for the first P5.0 M and instructed Mrs. San

Pablo, chief accountant, to return the amount to the PSF using a DepED

check. A certified copy of the cancelled voucher with the Appellant’s

marginal note (written instructions) is attached as Annex “O”.

35. On 12 September 2005, the Appellant left for the United

States for a conference in New York City. That same day, the PCIJ blog

appeared in the Philippine Star. While the Appellant was in the United

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States, OIC-Secretary Fe Hidalgo received a letter from Cong. Antonio

Diaz dated 13 September requesting for the release of the first P5.0 M

(date 21 August 2005). This was eventually released upon the

instructions of OIC-Secretary Hidalgo. A certified true copy of Cong. Diaz’

letter is attached as Annex “P. After the release of this amount, the

DepED received a Deed of Donation for the same P5.0M signed by

Cabinet Secretary Ricardo Saludo and Undersecretary Ramon Bacani of

the DepED, notarized on 15 September 2005. A certified copy of this

Deed of Donation is attached as Annex “Q”.

36. The next day, on 13 September 2005, the DepED received the

letter of termination of the Appellant from the Executive Secretary. The

OIC-Secretary called the Appellant on 16 September 2005 while he was

still in New York to relay the news. It will be noted that the letter of

Cong. Diaz (See Annex N) was received by the DepEd on that same day,

13 September 2005.

37. On 4 October 2006, Appellant received a Memorandum signed

by Executive Secretary Eduardo Ermita “reassigning” him to the

Department of Labor and Employment (DOLE), without specifying a

position or a definite period. On the same day, the Appellant received a

letter from DOLE Secretary Patricia Santo Tomas dated 23 September

2005, stating that since the Appellant was being moved from the DepED,

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she was requesting that he be reassigned to her department. A certified

true copy of this letter is attached as Annex “R”.

38. Hence, the Appellant files this Appeal contesting his

reassignment to the DOLE.

Arguments/Issues

I.

APPELLANT WAS CONSTRUCTIVELY DISMISSED

II. THE ORDER REASSIGNING THE APPELLANT TO THE DOLE WAS DONE WITH GRAVE ABUSE OF DISCRETION, THEREFORE UNLAWFUL Appellant, a CESO, may be reassigned or transferred only if the following requirements are met: a) the reassignment or transfer must be in the interest of public service, b) without reduction in rank or salary, and c) no reassignment or transfer may be made oftener than every two years, d) the reassignment or transfer must be effected only upon the availability of a corresponding position.

III.

APPELLANT’S TRANSFER WAS DONE IN BAD FAITH, AND OBVIOUSLY FOR POLITICAL REASONS

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D i s c u s s i o n

I. Appellant was constructively dismissed

39. The 4 October 2005 Memorandum mandating the transfer of

Appellant states that :

“In the exigency of service, you are hereby re-assigned from the Department of Education (DepEd) to the Department of Labor and Employment (DOLE) to a position at least commensurate to your Career Executive Service rank.” (Emphasis supplied)

40. The Memorandum, although purportedly merely reassigning

the Appellant to the DOLE, was obviously meant to kick him out of

DepED because of his refusal to tow Malacanang’s line. Especially when

viewed in the context of the antecedent facts, this “transfer” or

“reassignment” is in reality a constructive dismissal because the

Memorandum does not specify what position the Appellant will occupy in

the DOLE and for how long he would be reassigned there.

41. Furthermore, there is at present no vacant or available position

of Undersecretary in the DOLE. Without such a position, the apparent

intent of Malacanang is to “float” the Appellant as a punishment, which

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is not allowed by the Civil Service Commission (See, CSC Resolution No.

548, Aug. 10, 2004). Because the purpose of the transfer order was to

put Appellant on “floating” status, the Appellant is deemed to be have

been constructively dismissed. This especially so since the Appellant

would then find his situation in the DOLE intolerable and humiliating

such that he would have to eventually resign from the government

service.

42. The Constitution guarantees that no officer or employee in the

Civil Service shall be dismissed except for cause as provided by law.7

This was blatantly violated by the Appellee, and his gross bad faith,

driven by political motive, is clear from the antecedent facts.

Furthermore, the Supreme Court has held in the case of Pastor vs. Pasig8

that an indefinite assignment, such as that of Appellant, is tantamount

to a constructive dismissal. In said case, petitioner, a budget officer, was

assigned to Office of the Municipal Administrator indefinitely. Her

assignment was allegedly pending the investigation of reports that she

issued advice of allotments without sufficient cash collection. In her ten-

year assignment, however, no investigation therefore was ever conducted.

The Supreme Court found such indefinite assignment as a form of

constructive dismissal which left petitioner virtually on a floating status.

Moreover, the Supreme Court held that an employee’s illegal removal

7 Art. IX-B, Sec. 2(3), 1987 Constitution. 8 382 SCRA 232 (2002).

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cannot be carried out in the guise of a transfer for the good of public

service, thus:

“There is no question that we recognize the validity and indispensable necessity of the well established rule that for the good of public service and whenever public interest demands, [a] public official may be temporarily assigned or detailed to other duties even over his objection without necessarily violating his fundamental and legal rights to security of tenure in the civil service. But as we have already stated, “such cannot be undertaken when the transfer of the employee is with a view to his removal” and “if the transfer is resorted to as a scheme to lure the employee away from his permanent position” because “such attitude is improper as it would in effect result in a circumvention of the prohibition which safeguards the tenure of office of those who are in the civil service.”9

43. Similarly, in Gloria vs. Court of Appeals10 and Padolino vs.

Fernandez,11 the Supreme Court held that an indefinite assignment, i.e.

one which does not indicate a particular duration or does not appear to

be temporary, violates a civil servant’s security of tenure.

44. In addition, in Bentain vs. Court of Appeals,12 the Supreme

Court did not hesitate to declare a transfer motivated by purposes other

than the exigencies of public interest as tantamount to an illegal

dismissal. In the said case, petitioner, the Chief Security Officer of the

University of the Philippines was indefinitely assigned to work full time

on the UP Police Force operationalization project. After completing his

9 Citing Cruz. Vs. Navarro, 66 SCRA 79, 90 (1975). 10 338 SCRA 5. 11 342 SCRA 442. 12 G.R. No. 89452, June 9, 1992.

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work in the said project and after the university legal counsel

recommended that he be restored to his position as Chief Security

Officer, said position was immediately abolished. Noting the timeliness of

the abolition, the Supreme Court properly concluded that the order was

“issued to prevent petitioner from returning to his former position” and

ruled:

While a temporary transfer or assignment of personnel

is permissible even without the employee’s prior consent, it cannot be done when the transfer is a preliminary step toward his removal, or is a scheme to lure him away from his permanent position, or designed to indirectly terminate his service, or force his resignation. Such transfer would in effect circumvent the provision which safeguards the tenure of office of those who are in the Civil Service.”13

II. The order reassigning the Appellant to the DOLE was done with grave abuse of discretion, therefore unlawful.

45. Appellee cannot justify his action on the pretext that

Appellant’s transfer is covered by the mobility principle sanctioned by

this Honorable Commission. While we can grant that CESOs may be

transferred, this can only be done if several requirements are met, and

always in good faith. While the Appellee has the authority to transfer a

CESO, he cannot do so in grave abuse of discretion. The application of

13 Citing Sta. Maria vs. Lopez, 31 SCRA 651; Garcia vs. Lejano, 109 Phil. 116.

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the mobility principle to CESOs was specifically laid down in the Revised

Policy on Security of Tenure in the Career Executive Service (“Revised

Policy”),14 to wit:

“RESOLVED FURTHER, that notwithstanding the permanent status of appointment of a third level official, he/she is covered by the mobility principle enshrined under Article IV, Part III of the Integrated Reorganizational Plan, as approved by Presidential Decree No. 1, as amended, dated September 24, 1972, quoted herein as follows:

‘e. Assignments, Reassignments and Transfers

x x x x x x x x x Any provision of law to the contrary notwithstanding, members of the Career Executive Service may be reassigned or transferred from one position to another; provided that such reassignment or transfer is made in the interest of public service and involves no reduction in rank or salary; provided, further, that no member shall be reassigned or transferred oftener than every two years.’

RESOLVED FURTHERMORE, to ensure compliance to (sic) the above-quoted mobility principle, reassignment or transfer shall be effected only upon the availability of the corresponding position, it being understood that a “floating status” is not within the contemplation of this principle. Assignment to a CESO pool shall not be considered as a floating status.” (Emphasis supplied)

46. Based on the foregoing resolution, the reassignment or transfer

of a CESO must comply with the following requisites:

a. It must be made in the interest of public service; 14 Career Executive Service Board Resolution No. 548, August 10, 2004.

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b. It must involve no reduction in rank or salary;

c. It must not be made within two years from the employee’s

last transfer or reassignment; and

d. It must be effected only upon the availability of a

corresponding position.

47. The Office of the President, represented by the Appellee,

miserably failed to satisfy the first and the fourth requisite. Worse, its

action reeks of the unmistakable smell of malice. The Appellee’s mere

invocation of the clause “in the exigency of service” does not make the

Appellant’s transfer lawful, in the absence of any convincing proof

thereof. The burden of proof is on the part of the Appellee who seeks to

deprive the Appellant of his work, his right to property.

48. That Appellant is purportedly needed at the DOLE, as

Secretary Patricia Sto. Tomas claims in her letter to Appellee, is NOT an

“exigency of service” which warrants Appellant’s transfer. Secretary Sto.

Tomas’ letter itself belies any pretense that the transfer order of the

Appellant was in the interest of public service. On the contrary, said

letter acknowledges that Appellee already sought to remove Appellant

from the DepED from the very start, and upon knowing the same,

Secretary Sto. Tomas requested that the Appellant be transferred to her

department, perhaps intending to make the transfer less painful for the

Appellant, or at least, so that he has a friendly Secretary to work with,

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considering that she and the Appellant are both alumni of the Kennedy

School of Government.

49. In fact, Secretary Sto. Tomas made the request to the Appellee

only because she had been informed of Appellant’s removal from the

DepEd. Obviously, the DOLE Secretary’s alleged request is a mere

afterthought intended to subterfuge Appellee’s original plan to get rid of

Appellant.

50. The reassignment of the Appellant therefore, can in no way be

seen as “in the interest of public service.” The truth is, the public will be

better served if Appellant remains as DepEd Undersecretary. The Office

of the President is well aware that until now, the DepED is without a

Secretary. DepED is mandated to have four (4) undersecretaries and four

(4) assistant secretaries.15 However, DepEd presently has only three (3)

undersecretaries, only two (2) of whom are functioning as such since the

third is the officer-in-charge of the department. Of the two functioning

undersecretaries, one is co-terminus or non-career.

51. On the other hand, the DOLE has three (3) career

undersecretaries, one of whom assumed office only last 30 September

2005. There is no vacant or available Undersecretary position in the

DOLE. In addition, DOLE is allowed three (3) plantilla Assistant

Secretary positions, two (2) of which are already filled-up. 15 Republic Act No. 9155, Governance of Basic Education Act of 2001.

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52. The fourth requisite for a lawful transfer of a CESO was

likewise violated by the Appellee. If the Appellant is transferred to

DOLE, he will be placed in a humiliating situation because he will not get

the same rank and status of Undersecretary. Given the situation of both

departments, how can the DOLE’s need for Appellant’s services take

priority over that of the DepEd?

53. Moreover, the Office of the President could not possibly be

blind to the successful reforms spearheaded by the Appellant in the

DepEd, particularly on fiscal and administrative management. With

Appellant’s outstanding performance, his transfer to another department

with a completely different and unrelated function for which he was not

trained all the more becomes illogical.

54. It is therefore not difficult to conclude that Appellant’s honesty,

professionalism and independence in the performance of his duties as

the Undersecretary in charge of the finances of the government agency

with the biggest budget, having P112 Billion as of 2004, prompted the

Office of the President to underhandedly remove him from the DepEd.

And for what purpose? Not only to punish him, but to serve also as a

lesson to others who may be of like mind.

55. While the transfer of Career Executive Service Officers is

allowed, this can be lawfully done only if the above-mentioned

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requirements are existing, and always in good faith. We can be guided

by a case with similar issues involving the transfer of Atty. Virgina L.

Trinidad, CESO IV, who was an Assistant Commissioner in the Bureau of

Internal Revenue, who was reassigned to a position that does not exist.

In the case of Trinidad, Virginia L. Re Appeal, Reassignment, the CSC

ruled in favor of the Appellant in its Resolution No. 030669 ( 10 June

2003), stating that:

“ While it is true that reassignment is a management prerogative which the Commission does not normally interfere with, the same is true only, as held in CSC Resolution No. 96-3651, absent the showing of grave abuse of discretion. In other words, grave abuse of discretion must be clearly shown in order that the Commission may take up the cudgels for the employee reassigned (MONTIEL, Rolando, CSC Resolution No. 94-1006, February 17, 1994. The authority under the law is not intended as a convenient weapon for the appointing authority to harass or oppress a subordinate on the pretext of advancing and promoting public interest (INHAYES, Oscar J., CSC Resolution No. 98-16-08, June 24, 1998).”

III. Appellant’s transfer was done in bad faith, and obviously for political reasons 56. A careful examination of the events that transpired prior to

Appellant’s transfer clearly shows that Appellee’s act was tainted with

bad faith, motivated by purely political reasons. Quite clearly, the

Appellant was removed because he was an obstacle to the wishes of the

President that she distributes the Presidential Social Fund with no

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restrictions, and even when funds are not available, hence the post-dated

checks. The Palace demands blind obedience, and this the Appellant

could not give.

57. Appellee very well knew that Appellant is a CESO with a

constitutionally guaranteed right to security of tenure, yet it sought to

dismiss Appellant through a termination letter dated 13 September 2005,

only four (4) days after Appellant decided to transfer back to the PSF the

three (3) checks supposedly for Congressman Diaz. The timing betrays

Malacanang’s political motives behind Appellant’s termination.

58. Both the CSC and the CESB have written the Appellant that

termination of a CESO without cause and due process of law is illegal.

Hence, in a desperate and fraudulent attempt to lend a semblance of

legality to Appellant’s removal from the DepEd, Malacanang qualified on

23 September 2005, i.e. ten (10) days after the issuance of the

termination letter, that Appellant was “terminated as undersecretary (of

education) but not as CESO” (Annex “I” hereof). Malacanang later

changed its stance and disguised the termination as “a reassignment to

some other government position of the same rank”.

59. Malacanang’s cover-up did not end with its conflicting

declarations. Knowing that the termination (disguised as reassignment)

is patently illegal, Malacanang deviously made it appear that Appellant

resigned and that it merely allowed Appellant to continue its services as

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some form of accommodation. Worse, Malacanang declared all these

through press releases, obviously to humiliate Appellant before the

public.

60. This Honorable Commission should not and cannot sanction

such dismissal tainted by bad faith. Just like any other employer, the

government cannot transfer an employee as a result of discrimination, in

bad faith or as a form of punishment without sufficient cause.16 As this

Honorable Commission has consistently ruled, “(t)he authority (to

transfer employees) under the law is not intended to harass or oppress a

subordinate on the pretext of advancing and promoting public interest”17.

61. The Supreme Court has protected government employees from

political vendetta. In Pangilinan vs. Maglaya,18 the Acting Executive

Director of the Land Transportation Office was separated from service the

day after his public exposes on the anomalies involving his superiors and

his threat to file cases against them. Although the Supreme Court

admitted that it was constrained by law to uphold the termination of a

temporary employee, it did not hesitate to express its disapproval of the

real political motives behind dismissals and declare that the removal, in

fact, constitutes grave abuse of discretion:

16 Philippine American Life and General Insurance Co. vs. Gramaje, G.R. No. 156963, November 11, 2004. 17 Civil Service Commission Resolution No. 030669, June 10, 2003 citing CSC Resolution No. 98-16-08, June 24, 1998. 18 G.R. No. 104216, August 20, 1993.

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“It is not difficult to see that the petitioner was replaced because of his expos and his threat to bring charges against his superiors. His relief was clearly an act of punishment if not personal vengeance. This is not denied. The respondents, while invoking the law to justify his separation, have made no effort whatsoever to justify their motives.

x x x x x x x x x It would be a sorry day, indeed, if a civil servant could be summarily removed from his position for the "sin" of complaining about the irregularities of his superiors. This would not only impair the integrity of the civil service but also undermine the campaign to encourage the public, including those in the civil service, to expose and denounce venality in government. Pangilinan's denunciation of the non-reflective license plates was not the act of a rabble-rouser or a publicity-seeker. The record shows that he quietly brought the matter to the attention of his superiors, giving reasons for his misgivings. They took no action. Feeling frustrated, he sought the attention of the media and told them of his objection to the non-reflective license plates. He cited the laws that he claimed had been violated. He narrated his efforts to prevent their violation. He spoke of the indifference of his superiors. In doing all these, he was exercising his right as a citizen, and especially as a civil servant, to denounce official misconduct and improve the public service.

x x x x x x x x x Pangilinan was separated the day immediately following his press conference. The Court sees the action as a retaliation. The public respondents say they were merely terminating his incumbency in accordance with existing law. The Court sees that termination as a punishment. Under the expanded definition of judicial power in Article VIII, Section 1, of the Constitution, the Court can declare the acts of the public respondents as tainted

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with grave abuse of discretion and therefore invalid.” (Emphasis supplied)

62. In this case, Appellant faces a formidable opponent, and

powerless, he can only take refuge in the arms of the law. Under a Rule

of Law not even the highest officer of the land should be allowed to

disregard the Constitution, the law and the rights of civil servants. No

amount of political power nor threat of punishment should be able to

intimidate civil servants into loyal submission, blind obedience, and

conspiracy to commit unlawful acts.

Prayer WHEREFORE, in view of the foregoing, it is respectfully prayed

that the Order dated 4 October 2005 signed by the Appellee, ordering

Appellant’s transfer to the DOLE be nullified as illegal and that Appellant

be retained as Undersecretary for Finance and Administration of the

Department of Education.

The Appellant prays for other relief that are just and

equitable in the premises.

Quezon City, 14 October 2005.

Counsel for Appellant:

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ROWENA V. GUANZON PTR No. 01321430 1-17-04 Cadiz City IBP Lifetime Member 1020636 8-20-04 Bacolod City Roll of Attorney No. 33534

DAMCELLE S. TORRES PTR NO. 9437561/1-05-2005/ Makati

IBP NO. 631983/1-05-2005 Laguna Roll of Attorney No. 49400

MAE NIÑA REYES

Suite 311 Centro Plaza Scout Torillo corner Scout Madrinan South Triangle, Quezon City 1103 Copy furnished: Registered Mail No. ___ Secretary Eduardo Ermita Date __________________ Office of the Executive Secretary Malacanang Palace Manila City

EXPLANATION ON MODE OF SERVICE

For lack of personnel, a copy of foregoing Memorandum on Appeal was served by registered mail, rather than by the preferred mode of personal service.

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DAMCELLE S. TORRES

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