Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No.

CA-05-18-P April 12, 2005 ZALDY NUEZ, Complainant, vs. ELVIRA CRUZ-APAO, respondent. DECISION PER CURIAM: What brings our judicial system into disrepute are often the actuations of a few erring court personnel peddling influence to party-litigants, creating the impression that decisions can be bought and sold, ultimately resulting in the disillusionment of the public. This Court has never wavered in its vigilance in eradicating the so-called "bad eggs" in the judiciary. And whenever warranted by the gravity of the offense, the supreme penalty of dismissal in an administrative case is meted to erring personnel.1 The above pronouncement of this Court in the case of Mendoza vs. Tiongson2 is applicable to the case at bar. This is an administrative case for Dishonesty and Grave Misconduct3 against Elvira Cruz-Apao (Respondent), Executive Assistant II of the Acting Division Clerk of Court of the Fifteenth (15th) Division, Court of Appeals (CA). The complaint arose out of respondents solicitation of One Million Pesos (P1,000,000.00) from Zaldy Nuez (Complainant) in exchange for a speedy and favorable decision of the latters pending case in the CA,4 more particularly, CA-G.R. SP No. 73460 entitled "PAGCOR vs. Zaldy Nuez."5 Complainant initially lodged a complaint with the Action Center of the Television program Imbestigador of GMA Network,6 the crew of which had accompanied him to the Presidential Anti-Organized Crime CommissionSpecial Projects Group (PAOCC-SPG) in Malacaang where he filed a complaint for extortion7 against respondent. This led to the conduct of an entrapment operation by elements of the Presidential Anti-Organized Crime Task Force (PAOCTF) on 28 September 2004 at the Jollibee Restaurant, 2 nd Floor, Times Plaza Bldg., corner Taft and United Nations Avenue, Manila,8 the place where the supposed hand-over of the money was going to take place. Respondents apprehension by agents of the PAOCTF in the course of the entrapment operation prompted then CA Presiding Justice (PJ) Cancio C. Garcia (now Supreme Court Justice) to issue Office Order No. 297-04-CG9 (Order) which created an ad-hoc investigating committee (Committee).10 The Committee was specifically tasked among others to conduct a thorough and exhaustive investigation of respondents case and to recommend the proper administrative sanctions against her as the evidence may warrant.11 In accordance with the mandate of the Order, the Committee conducted an investigation of the case and issued a Resolution12 dated 18 October 2004 where it concluded that a prima facie case of Dishonesty and Serious Misconduct against respondent existed. The Committee thus recommended respondents preventive suspension for ninety (90) days pending formal investigation of the charges against her.13 On 28 January 2005, the Committee submitted a Report14 to the new CA Presiding Justice Romeo A. Brawner with its recommendation that respondent be dismissed from service. Based on the hearings conducted and the evidence received by the Committee, the antecedent facts are as follows: Complainants case referred to above had been pending with the CA for more than two years.15 Complainant filed an illegal dismissal case against PAGCOR before the Civil Service Commission (CSC). The CSC ordered complainants reinstatement but a writ of preliminary injunction and a temporary restraining order was issued by the CA in favor of PAGCOR, thus complainant was not reinstated to his former job pending adjudication of the case. 16 Desiring an expeditious decision of his case, complainant sought the assistance of respondent sometime in July 2004 after learning of the latters employment with the CA from her sister, Magdalena David. During their first telephone conversation17 and thereafter through a series of messages they exchanged via SMS, 18 complainant informed respondent of the particulars of his pending case. Allegedly, complainant thought that respondent would be able to advise him on how to achieve an early resolution of his case. However, a week after their first telephone conversation, respondent allegedly told complainant that a favorable and speedy decision of his case was attainable but the person who was to draft the decision was in return asking for One Million Pesos (P1,000,000.00).19

Complainant expostulated that he did not have that kind of money since he had been jobless for a long time, to which respondent replied, "Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang pera, pasensiya na."20 Complainant then tried to ask for a reduction of the amount but respondent held firm asserting that the price had been set, not by her but by the person who was going to make the decision.21 Respondent even admonished complainant with the words "Wala tayo sa palengke iho!"22 when the latter bargained for a lower amount.23 Complainant then asked for time to determine whether or not to pay the money in exchange for the decision. Instead, in August of 2004, he sought the assistance of Imbestigador.24 The crew of the TV program accompanied him to PAOCCF-SPG where he lodged a complaint against respondent for extortion.25 Thereafter, he communicated with respondent again to verify if the latter was still asking for the money26 and to set up a meeting with her.27 Upon learning that respondents offer of a favorable decision in exchange for One Million Pesos (P1,000,000.00) was still standing, the plan for the entrapment operation was formulated by Imbestigador in cooperation with the PAOCC. On 24 September 2004, complainant and respondent met for the first time in person at the 2 nd Floor of Jollibee, Times Plaza Bldg.,28 the place where the entrapment operation was later conducted. Patricia Siringan (Siringan), a researcher of Imbestigador, accompanied complainant and posed as his sister-in-law.29 During the meeting, complainant clarified from respondent that if he gave the amount of One Million Pesos (P1,000,000.00), he would get a favorable decision. This was confirmed by the latter together with the assurance that it would take about a month for the decision to come out. 30 Respondent also explained that the amount of One Million Pesos (P1,000,000.00) guaranteed a favorable decision only in the CA but did not extend to the Supreme Court should the case be appealed later.31 When respondent was asked where the money will go, she claimed that it will go to a male researcher whose name she refused to divulge. The researcher was allegedly a lawyer in the CA Fifth (5th) Division where complainant case was pending.32 She also claimed that she will not get any part of the money unless the researcher decides to give her some. 33 Complainant tried once again to bargain for a lower amount during the meeting but respondent asserted that the amount was fixed. She even explained that this was their second transaction and the reason why the amount was closed at One Million Pesos (P1,000,000.00) was because on a previous occasion, only Eight Hundred Thousand Pesos (P800,000.00) was paid by the client despite the fact that the amount had been pegged at One Million Three Hundred Thousand Pesos (P1,300,000.00).34 Complainant then proposed that he pay a down payment of Seven Hundred Thousand Pesos (P700,000.00) while the balance of Three Hundred Thousand Pesos (P300,000.00) will be paid once the decision had been released. 35 However, respondent refused to entertain the offer, she and the researcher having learned their lesson from their previous experience for as then, the client no longer paid the balance of Five Hundred Thousand Pesos (P500,000.00) after the decision had come out.36 Complainant brought along copies of the documents pertinent to his case during the first meeting. After reading through them, respondent allegedly uttered, "Ah, panalo ka."37 The parties set the next meeting date at lunchtime on 28 September 2004 and it was understood that the money would be handed over by complainant to respondent then. 38 On the pre-arranged meeting date, five (5) PAOCTF agents, namely: Capt. Reynaldo Maclang (Maclang) as team leader, SPO1 Renato Banay (Banay), PO1 Bernard Villena (Villena), PO1 Danny Feliciano, and PO2 Edgar delos Reyes39 arrived at around 11:30 in the morning at Jollibee.40 Nuez and Siringan arrived at past noon and seated themselves at the table beside the one occupied by the two (2) agents, Banay and Villena. Complainant had with him an unsealed long brown envelope containing ten (10) bundles of marked money and paper money which was to be given to respondent.41 The envelope did not actually contain the One Million Pesos (P1,000,000.00) demanded by respondent, but instead contained paper money in denominations of One Hundred Pesos (P100.00), Five Hundred Pesos (P500.00) and One Thousand Pesos (P1,000.00), as well as newspaper cut-outs.42 There were also ten (10) authentic One Hundred Peso (P100.00) bills which had been previously dusted with ultra-violet powder by the PAOCTF.43 The three other PAOCTF agents were seated a few tables away44 and there were also three (3) crew members from Imbestigador at another table operating a mini DV camera that was secretly recording the whole transaction. 45 Respondent arrived at around 1:00 p.m.46 She appeared very nervous and suspicious during the meeting.47 Ironically, she repeatedly said that complainant might entrap her, precisely like those that were shown on Imbestigador.48 She thus refused to receive the money then and there. What she proposed was for complainant and Siringan to travel with her in a taxi and drop her off at the CA where she would receive the money.49 More irony ensued. Respondent actually said that she felt there were policemen around and she was afraid that once she took hold of the envelope complainant proffered, she would suddenly be arrested and handcuffed. 50 At one point, she even said, "Ayan o, tapos na silang kumain, bakit hindi pa sila umaalis?,"51 referring to Banay and Villena at the next table. To allay respondents suspicion, the two agents stood up after a few minutes and went near the staircase where they could still see what was going on.52 Complainant, respondent and Siringan negotiated for almost one hour. 53 Complainant and Siringan bargained for a lower price but respondent refused to accede. When respondent finally touched the unsealed envelope to look at the money inside, the PAOCTF agents converged on her and invited her to the Western Police District (WPD) Headquarters at United Nations Avenue for questioning.54 Respondent became hysterical as a commotion ensued inside the restaurant. 55

On the way to the WPD on board the PAOCTF vehicle, Banay asked respondent why she went to the restaurant. The latter replied that she went there to get the One Million Pesos (P1,000,000.00).56 Respondent was brought to the PNP Crime Laboratory at the WPD where she was tested and found positive for ultra-violet powder that was previously dusted on the money.57 She was later detained at the WPD Headquarters. At seven oclock in the evening of 28 September 2004, respondent called Atty. Lilia Mercedes Encarnacion Gepty (Atty. Gepty), her immediate superior in the CA at the latters house.58 She tearfully confessed to Atty. Gepty that "she asked for money for a case and was entrapped by police officers and the media."59 Enraged at the news, Atty. Gepty asked why she had done such a thing to which respondent replied, "Wala lang maam, sinubukan ko lang baka makalusot."60 Respondent claimed that she was ashamed of what she did and repented the same. She also asked for Atty. Geptys forgiveness and help. The latter instead reminded respondent of the instances when she and her co-employees at the CA were exhorted during office meetings never to commit such offenses. 61 Atty. Gepty rendered a verbal report62 of her conversation with their divisions chairman, Justice Martin S. Villarama. She reduced the report into writing and submitted the same to then PJ Cancio Garcia on 29 September 2004. 63 She also later testified as to the contents of her report to the Committee. During the hearing of this case, respondent maintained that what happened was a case of instigation and not an entrapment. She asserted that the offer of money in exchange for a favorable decision came not from her but from complainant. To support her contention, she presented witnesses who testified that it was complainant who allegedly offered money to anyone who could help him with his pending case. She likewise claimed that she never touched the money on 28 September 2004, rather it was Capt. Maclang who forcibly held her hands and pressed it to the envelope containing the money. She thus asked that the administrative case against her be dismissed. This Court is not persuaded by respondents version. Based on the evidence on record, what happened was a clear case of entrapment, and not instigation as respondent would like to claim. In entrapment, ways and means are resorted to for the purpose of ensnaring and capturing the law-breakers in the execution of their criminal plan. On the other hand, in instigation, the instigator practically induces the would-be defendant into the commission of the offense, and he himself becomes a co-principal.64 In this case, complainant and the law enforcers resorted to entrapment precisely because respondent demanded the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable decision of the latters pending case. Complainants narration of the incidents which led to the entrapment operation are more in accord with the circumstances that actually transpired and are more credible than respondents version. Complainant was able to prove by his testimony in conjunction with the text messages from respondent duly presented before the Committee that the latter asked for One Million Pesos (P1,000,000.00) in exchange for a favorable decision of the formers pending case with the CA. The text messages were properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence65 which provides: "Ephemeral electronic communication" refers to telephone conversations, text messages . . . and other electronic forms of communication the evidence of which is not recorded or retained." Under Section 2, Rule 11 of the Rules on Electronic Evidence, "Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof . . . ." In this case, complainant who was the recipient of said messages and therefore had personal knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone number reflected in complainants cellphone from which the messages originated was hers. 66 Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text messages between her and complainant.67 It is also well to remember that in administrative cases, technical rules of procedure and evidence are not strictly applied.68 We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof of respondent in this case. Complainants testimony as to the discussion between him and respondent on the latters demand for One Million Pesos (P1,000,000.00) was corroborated by the testimony of a disinterested witness, Siringan, the reporter of Imbestigador who was present when the parties met in person. Siringan was privy to the parties actual conversation since she accompanied complainant on both meetings held on 24 and 28 of September 2004 at Jollibee. Respondents evidence was comprised by the testimony of her daughter and sister as well as an acquaintance who merely testified on how respondent and complainant first met. Respondents own testimony consisted of bare denials and self-serving claims that she did not remember either the statements she herself made or the contents of the messages she sent. Respondent had a very selective memory made apparent when clarificatory questions were propounded by the Committee.

When she was asked if she had sent the text messages contained in complainants cellphone and which reflected her cellphone number, respondent admitted those that were not incriminating but claimed she did not remember those that clearly showed she was transacting with complainant. Thus, during the 17 November 2004 hearing, where respondent was questioned by Justice Salazar-Fernando, the following transpired: Q: After reading those text messages, do you remember having made those text messages? (Respondent) A: Only some of these, your honors. Justice Salazar-Fernando: Which one? A: Sabi ko po magpunta na lang sila sa office. Yung nasa bandang unahan po, your Honors. Q: What else? A: Tapos yung sabi ko pong pagpunta niya magdala siya ng I.D. or isama niya sa kanya si Len David. Q: Okay, You remember having texted Zaldy Nuez on September 23, 2004 at 1309 which was around 1:09 in the afternoon and you said "di me pwede punta na lang kayo dito sa office Thursday 4:45 p.m. Room 107 Centennial Building. A: Yes, your Honors. Q: And on September 23, 2004 at 1731 which was around 5:31 in the afternoon you again texted Zaldy Nuez and you said "Sige bukas nang tanghali sa Times Plaza, Taft Avenue, corner U.N. Avenue. Magdala ka ng I.D. para makilala kita o isama mo si Len David. A: Opo, your Honors. Q: How about on September 23 at 5:05 in the afternoon when you said "Di pwede kelan mo gusto fixed price na iyon." A: I dont remember that, your Honors. Q: Again on September 23 at 5:14 p.m. you said "Alam mo di ko iyon price and nagbigay noon yung gagawa. Wala ako doon." You dont also remember this? A: Yes, your Honors. Q: September 27 at 1:42 p.m. "Oo naman ayusin nyo yung hindi halatang pera". You also dont remember that? A: Yes Your Honors. Q: September 27 at 1:30 in the afternoon, "Di na pwede sabi sa akin. Pinakaiusapan ko na nga ulit iyon." You dont remember that? A: No, your Honors.69 Respondent would like this Court to believe that she never had any intention of committing a crime, that the offer of a million pesos for a favorable decision came from complainant and that it was complainant and the law enforcers who instigated the whole incident. Respondent thus stated that she met with complainant only to tell the latter to stop calling and texting her, not to get the One Million Pesos (P1,000,000.00) as pre-arranged. This claim of respondent is preposterous to say the least. Had the offer of a million pesos really come from complainant and had she really intended to stop the latter from corrupting her, she could have simply refused to answer the latters messages and calls. This she did not do. She answered those calls and messages though she later claimed she did not remember having sent the same

messages to complainant. She could also have reported the matter to the CA Presiding Justice, an action which respondent admitted during the hearing was the proper thing to do under the circumstances. 70 But this course of action she did not resort to either, allegedly because she never expected things to end this way. 71 While claiming that she was not interested in complainants offer of a million pesos, she met with him not only once but twice, ostensibly, to tell the latter to stop pestering her. If respondent felt that telling complainant to stop pestering her would be more effective if she did it in person, the same would have been accomplished with a single meeting. There was no reason for her to meet with complainant again on 28 September 2004 unless there was really an understanding between them that the One Million Pesos (P1,000,000.00) will be handed over to her then. Respondent even claimed that she became afraid of complainant when she learned that the latter had been dismissed by PAGCOR for using illegal drugs. 72 This notwithstanding, she still met with him on 28 September 2004. Anent complainants narration of respondents refusal to reduce the amount of One Million Pesos (P1,000.000.00) based on the lesson learned from a previous transaction, while admitting that she actually said the same, respondent wants this Court to believe that she said it merely to have something to talk about.73 If indeed, respondent had no intention of committing any wrongdoing, it escapes the Court why she had to make up stories merely to test if complainant could make good on his alleged boast that he could come up with a million pesos. It is not in accord with ordinary human experience for an honest government employee to make up stories that would make party-litigants believe that court decisions may be bought and sold. Time and again this Court has declared, thus: "Everyone in the judiciary bears a heavy burden of responsibility for the proper discharge of his duty and it behooves everyone to steer clear of any situations in which the slightest suspicion might be cast on his conduct. Any misbehavior on his part, whether true or only perceived, is likely to reflect adversely on the administration of justice."74 Respondent having worked for the government for twenty four (24) years, nineteen (19) of which have been in the CA, 75 should have known very well that court employees are held to the strictest standards of honesty and integrity. Their conduct should at all times be above suspicion. As held by this Court in a number of cases, "The conduct or behavior of all officials of an agency involved in the administration of justice, from the Presiding Judge to the most junior clerk, should be circumscribed with the heavy burden of responsibility."76 Their conduct must, at all times be characterized by among others, strict propriety and decorum in order to earn and maintain the respect of the public for the judiciary.77 Respondents actuations from the time she started communicating with complainant in July 2004 until the entrapment operation on 28 September 2004 show a lack of the moral fiber demanded from court employees. Respondents avowals of innocence notwithstanding, the evidence clearly show that she solicited the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable decision. The testimony of Atty. Gepty, the recipient of respondents confession immediately after the entrapment operation, unmistakably supports the finding that respondent did voluntarily engage herself in the activity she is being accused of. Respondents solicitation of money from complainant in exchange for a favorable decision violates Canon I of the Code of Conduct for Court Personnel which took effect on 1 June 2004 pursuant to A.M. No. 03-06-13-SC. Sections 1 and 2, Canon I of the Code of Conduct for Court Personnel expressly provide: "SECTION 1. Court personnel shall not use their official position to secure unwarranted benefits, privileges or exemption for themselves or for others." "SECTION 2. Court personnel shall not solicit or accept any gift, favor or benefit based on any explicit or implicit understanding that such gift, favor or benefit shall influence their official actions." (Underscoring supplied) It is noteworthy that the penultimate paragraph of the Code of Conduct for Court Personnel specifically provides: INCORPORATION OF OTHER RULES "SECTION 1. All provisions of the law, Civil Service rules, and issuances of the Supreme Court governing the conduct of public officers and employees applicable to the judiciary are deemed incorporated into this Code." By soliciting the amount of One Million Pesos (P1,000,000.00) from complainant, respondent committed an act of impropriety which immeasurably affects the honor and dignity of the judiciary and the peoples confidence in it. In the recent case of Aspiras vs. Abalos,78 complainant charged respondent, an employee of the Records Section, Office of the Court Administrator (OCA), Supreme Court for allegedly deceiving him into giving her money in the total amount of Fifty Two Thousand Pesos (P52,000.00) in exchange for his acquittal in a murder case on appeal before the Supreme Court. It turned out that respondents representation was false because complainant was subsequently convicted of murder and sentenced to suffer the penalty of reclusion perpetua by the Supreme Court.79

The Supreme Court en banc found Esmeralda Abalos guilty of serious misconduct and ordered her dismissal from the service. This Court aptly held thus: "In Mirano vs. Saavedra,80 this Court emphatically declared that a public servant must exhibit at all times the highest sense of honesty and integrity. The administration of justice is a sacred task, and by the very nature of their duties and responsibilities, all those involved in it must faithfully adhere to, hold inviolate, and invigorate the principle that public office is a public trust, solemnly enshrined in the Constitution."81 Likewise, in the grave misconduct case against Datu Alykhan T. Amilbangsa of the Sharia Circuit Court, Bengo, Tawi-Tawi,82 this Court stated: "No position demands greater moral righteousness and uprightness from the occupant than the judicial office. Those connected with the dispensation of justice bear a heavy burden of responsibility. Court employees in particular, must be individuals of competence, honesty and probity charged as they are with safeguarding the integrity of the court . . . . The High Court has consistently held that persons involved in the administration of justice ought to live up to the strictest standards of honesty and integrity in the public service. He should refrain from financial dealings which would interfere with the efficient performance of his duties.83 The conduct required of court personnel must always be beyond reproach." 84 The following pronouncement of this Court in the case of Yrastorza, Sr. vs. Latiza, Court Aide, RTC Branch 14 Cebu City85 is also worth remembering: "Court employees bear the burden of observing exacting standards of ethics and morality. This is the price one pays for the honor of working in the judiciary. Those who are part of the machinery dispensing justice from the lowliest clerk to the presiding judge must conduct themselves with utmost decorum and propriety to maintain the publics faith and respect for the judiciary. Improper behavior exhibits not only a paucity of professionalism at the workplace but also a great disrespect to the court itself. Such demeanor is a failure of circumspection demanded of every public official and employee." 86 In view of the facts narrated above and taking into account the applicable laws and jurisprudence, the Committee in their Report87 recommended that respondent be dismissed from government service for GRAVE MISCONDUCT and violation of Sections 1 and 2, Canon 1 of the Code of Conduct for Court Personnel.88 Finding the Committees recommendation to be supported by more than substantial evidence and in accord with the applicable laws and jurisprudence, the recommendation is well taken. WHEREFORE, premises considered, respondent Elvira Cruz-Apao is found GUILTY of GRAVE MISCONDUCT and violation of SECTIONS 1 and 2 of the CODE OF CONDUCT FOR COURT PERSONNEL and is accordingly DISMISSED from government service, with prejudice to re-employment in any branch, instrumentality or agency of the government, including government-owned and controlled corporations. Her retirement and all benefits except accrued leave credits are hereby FORFEITED. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, CarpioMorales, Callejo, Sr., Azcuna, Tinga and Chico-Nazario, JJ., concur. Garcia, J., No part.