After agonizing for eight years with the threat of imprisonment hanging over their heads, the former mayor of Carmen town and eight others escaped punishment when they were all cleared of anti-graft charges before the Fourth Division of the Sandiganbayan.  In a 28-page ruling promulgated last Thursday, the anti-graft court cleared former mayor Pedro Budiongan, former vice mayor (now board member) Josil Trabajo, municipal treasurer Fulgencio Pana, budget officer Taciana Espejo, and Sangguniang Bayan members Rufino Adlaon, Tito Montajes, Mario Soria, Alfonso Unajan, Carlito Torrefranca and Vicente Torrefranca Jr. The acquittal came after more than eight years that the complaint was filed at the Ombudsman by former Carmen councilors Arlene Palgan and Valeriano Nadala Sr., the private complainants. The accused municipal officials were charged for violating Section 3, paragraph (e) of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

The information filed by private complainants and the Prosecutors of the Ombudsman stated that sometime in February 2002, accused Budiongan and the other respondents “conspired and confederated with each other, acting with evident bad faith, manifest partiality or gross inexcusable negligence in the discharges of their official and administrative function and committing the offense in relation to their office, by willfully, unlawfully and criminally giving unwarranted benefit to Herbert Malmis General Merchandise and Contractor Inc. by awarding to the said company a project for the asphalt paving of a portion of a municipal street in Carmen town in the amount of P349,808 despite the absence of funds appropriated for such purpose”.

The same information also alleged that “the availability of fund is an indispensable legal requirement in any government contract involving the expenditure of public funds as provided for under the Government Auditing Code and the Revised Administrative Code (EO 292)” but “the accused instead passed an ordinance realigning the amount of P450,000 which was originally appropriated for the purchase of a road roller equipment and used the said amount to pay the contract price in favor of the contractor”. The Sandiganbayan ruling, signed by Associate Justices Jose Hernandez, Gregory Ong and Roland Jurado, cited that all the accused were all discharging their official functions from the time the street project was discussed, during its implementation and completion until the Sangguniang Panlalawigan declared its appropriation Ordinance valid. The Fourth Division discussed “that the accused must have acted with manifest partiality, evident bad faith or gross inexcusable negligence” to prove they committed the offense.

“In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable. I is also present when there is an omission to act in a situation where there is a duty to act.” The Sandiganbayan believes that the acts and omissions of the ten accused town officials is “grossly negligent” for their failure to approve an appropriation ordinance before entering into contract, as clearly provided by law. Documents submitted to the Sandiganbayan showed that the project was already completed and the contract was already signed prior to the creation and approval of the required appropriation ordinance. Despite protests by private complainants that this did not conform to proper legal procedures, the accused SB members proceeded with the approval of said ordinance.

The accused caused the release of P310,460 to the contractor on June 14, 2002 as payment for the road contract because most of them believed there was already an appropriation ordinance for the project. “The gross negligence of the accused is demonstrated by their breach of the duties and functions provided under the Local Government Code of 1991.” The ruling continued that, “all things considered, the acts and omissions of the accused demonstrated an utter lack of care and a reckless disregard of the applicable laws regarding appropriation and disbursement of municipal funds”. On the issue whether the accused are guilty of manifest partiality and evident bad faith, the graft court said that the events that led to the completion of the project negate its existence. According to the court, the accused were addressing the problem concerning the damaged street, and considering the urgency of the project, the bids and awards committee conducted a pubic bidding and the contractor submitted the lowest complying responsive bid.

The court likewise explained that the implementation of the project did not amount to giving the contractor unwarranted benefits to the damage and prejudice of the government. “In awarding the project to the contractor, the accused drew justification from the problem of the municipality regarding the street. Moreover, the award was done after the conduct of a public bidding where the contractor was the lowest complying bidder.” The Sandiganbayan said that there is also no basis in finding that there was undue injury to the contractor or to the municipal government and that the prosecution failed to establish evidence regarding its presence. The Sangguniang Panlalawigan did not find irregularity on the passage of the appropriation ordinance while the COA also did not give any adverse finding on the street project implementation.

It was also pointed out by the graft court that the municipal government paid the contractor only after the approval of the appropriation ordinance, when money was already available for the street project. “Payment was made months after its completion, during these months, the public was already making use of the improved street.” The Sandiganbayan said the street project was not manifestly and grossly disadvantageous or injurious to the government since the amount involved went to the improvement of a street for the benefit of the municipality. The Sandiganbayan also emphasized that their ruling did not condone the violation by the accused of other provisions of applicable laws. “This Court absolutely frowns upon public officers' non-adherence to the law and legal procedures. The accused public officers are sternly reminded to follow the law on appropriations and exercise due diligence in transactions that involve disbursement of public funds.” The respondents were assisted by Atty. Alexander Lim of the Trabajo-Lim Law Office.