LEGAL SERVICES SECTOR Legal Affairs Office j, Local Geva-anert ge COA LEG: 1 OPIN Subject: Request for legal opinion on the j i ee ‘4 payment of Terminal Leave 1 Benefits (TLBs) to Mr. Sambitory B. Pundogar, former Provincial Treasurer of Lanao del Sur 2" Indorsement September 22, 2020 / Respectfully returned, through the Assistant Commissioners, th “fon, and the Local Government Sector, to the Regional Director, Bangsamoro Aufonomous Region in Muslim Mindanao, Cotabato City, all of this Commission Attention: The Supervising Auditor and the Audit Team Leader (ATL), Provincial Government of Lanao del Sur, Marawi City], the herein documents treating on the subject. In the letter dated January 17, 2020, ATL Norah A. Ansao informed that the Provincial Government of Lanao del Sur under the administration of Governor Bedjoria Soraya A, Adiong authorized the payment of Mr. Pundogar’s TLB from ‘August 1, 1971 to January 1, 2017, despite the issued COA Orders of Execution (COs) ordering the concerned Provincial Government to withhold the payment of salaries or any amount due to Mr. Pundogar. It may be recalled that the Court of Appeals (CA), in a Resolution dated July 6, 2018,' directed Governor Adiong to implement the Writ of Execution dated February 11, 2015, particularly on the payment of Mr. Pundogar’s back salaries and benefits from March 9, 2011 up to his reinstatement. Governor Adiong failed to comply with the writ, citing as reason the several COFs issued all dated August 12, 2013, The COEs, which ordered the withholding of salaries and any amount due the persons liable, including Mr. Pundogar, were issued in connection with the disallowance of the P19,899,000.00 loan granted to the province by the Land Bank of the Philippines that were disbursed without proper documentation. Meanwhile, Governor Adiong, in a letter dated August 1, 2018, sought this Commission's advice on the propriety of the payment of Mr. Pundogar’s TLBs, in view of the CA’s order to pay his back salaries. In fact, a Resolution dated January " Sambitory B. Pundogar v. Office of the Ombudsman, et al., ocketed as CA-G.R, SP No. 04145-MIN.23, 2018 was already issued by the CA directing Governor Adiong to show cause why she should not be held for contempt for failure to comply with the writ, The COA General Counsel, in a letter dated April 25, 2019 copy attached, categorically expressed the following: Xxx The liability under a COE is joint and several; therefore, the government may proceed against one, or some, or all of the persons liable until the entire obligation is satisfied. In the case of the herein COEs, there are other persons liable for the disallowances aside from Mr. Pundogar and they can be required to settle the amounts. Likewise, the rules of this Commission provide that if a COE cannot be fully enforced against the salaries and other benefits, other means to enforce civil liability, such as the institution of a civil suit against the officials concerned, may be made. ‘We fully agree that Mr, Pundogar is entitled to payment of his salaries pursuant to the CA decision dated October 9, 2013, which became final and executory, and was the basis for the issuance of the writ of execution, On the other hand, the COEs were based on COA decisions which were likewise final and executory as shown from the Notices of Finality of Decision all dated August 12, 2013. Being so, we are of the opinion that the payment by Mr. Pundogar of his liability under the COEs should also be made, provided that the law and rules on mandatory take-home pay and other regulations applicable to withholding of salaries are observed. However, retirement_benefits_cannot_be withheld and applied _to_hi indebtedness to the government. (Underscoring supplied) Upon post-audit, the ATL observed that Mr. Pundogar’s full TLB was released to him on September 10, 2019 despite the issuance of COEs. The ATL now asks for opinion on the appropriate audit action considering that the COE contains a categorical instruction to the head of the agency that payment of salaries or any amount due the persons liable in violation of the instruction will be disallowed in audit and the head of the agency will be held liable therefor. After evaluation, this Office is of the view that the issuance of disallowance against Governor Adiong for failure to withhold the amount due under the COEs: may not be proper since the TLB is in the nature of retirement benefits, and that he was obliged to release the TLB in view of the CA’s writ of execution. As defined under Section 4 (d), Rule II, of Civil Service Commission (CSC) Resolution No, 1300237 dated January 6, 2013, retirement benefits are remunerations, which include pensions, gratuities, terminal leave benefits, and other benefits, given to an official or employee by reason of his/her retirement from government service. (Underscoring supplied) 2In fact, the early release of retirement pay which includes the TLB is mandated under Section 2 of RA No. 10154, which provides: Period for Release of Retirement Benefits. - The head of the government agency concerned, the President and other responsible officers x x x shall ensure the release of the retirement pay, pensions, gratuities. and other benefits of a retiring government employee within a period of thirty (30) days from the date of the actual retirement of said employee: Provided, That all requirements are submitted to the concerned government agency at least ninety (90) days prior to the effective date of retirement: Provided, further, That in the case of the GSIS, it shall pay the retirement benefits of the retiring employee on his/her last day of his/her service to the government, pursuant to the GSIS Charter. Both Section 1 of RA No. 10154 and the 3 WHEREAS clause of the CSC Resolution speak of the timely and expeditious release of the retirement pay, pensions, gratuities and other benefits of all retiring employees in the government service. The retirement benefits, however, may be temporarily withheld in any of the following grounds: 1. If the employee has a pending administrative case. In no case, however, shall the TLB of a retiring employee be withheld because of a pending administrative case;? 2. If the government employee is indebted to the government and he/she admits his/her indebtedness and consents to retention of his/her retirement benefits;? and 3. Ifa competent court directs the retention of retirement benefits. The ATL is advised to remind the head of the agency that there are other available means to enforce the COEs. To reiterate the previous opinion of the General Counsel, this Commission, the liability under a COE is joint and several; therefore, the government may proceed against one, or some, or all of the persons liable until the entire obligation is satisfied. In the case of the herein COEs, there are other persons liable for the disallowances aside from Mr. Pundogar and they can be required to settle the amounts. Likewise, the rules of this Commission provide that if a COE cannot be fully enforced against the salaries and other benefits, other means 2 Section 6, Rule II of CSC Resolution No, 1300237 dated January 6, 2013, \ Tantuico, Jr. vs. Domingo, G.R. No. 96422, February 28, 1994; Banko Sentral ng Pilipinas, G.R. No. 168964, January 23, 2006, 3to enforce civil liability, such as the institution of a civil suit against the officials concerned, may be made. FORTUNATA w/arco Director Officer-in-Charge