Fuertes asks CA to lift Dumaluan TRO

Panglao Vice Mayor Pedro Fuertes has petitioned the Court of Appeals (CA) to lift the temporary restraining order (TRO) issued to Mayor Doloreich Dumaluan after he was suspended for six months by Ombudsman Merceditas Gutierrez. In a motion for reconsideration filed before the CA in Cebu City , Fuertes also asked the appellate court to deny the prayer for a writ of preliminary injunction and affirm the execution of the decision suspending Dumaluan. Fuertes, assisted by lawyer Urbano Lagunay, argued that the decision of the Office of the Ombudsman dated March 3 was “already received, executed and implemented” on Jan. 23. The motion claimed that the TRO enjoining the respondents to enforce the questioned decision became moot and academic as an injunction “does not lie against acts already consummated.” According to Fuertes, Dumaluan was served a copy of the decision on Jan. 23 together with the memorandum implementing the decision of the Ombudsman.

Pursuant to this order, Fuertes assumed office as mayor in acting capacity as proven by his oath of office on Jan. 23. The motion also noted that the suspension order for Dumaluan was well documented on the same day as shown by the proof of service. In his capacity as acting mayor, Fuertes has been exercising the powers, functions and responsibilities of the Office of the Mayor until he received the TRO on Feb. 8. He thus served as acting mayor for 16 days already before he was restrained. Fuertes said there is no dispute that the order of suspension from the Ombudsman was already enforced and consummated on Jan. 23 therefore the TRO issued on Feb. 1 became moot and academic. Citing jurisprudence, Fuertes said injunction “contemplates acts being committed or about to be committed, hence injunction does not lie against acts already consummated”.

He also cited another jurisprudence stating that injunction would not lie anymore as the acts sought to have been enjoined had already become a fait accompli or an accomplished or consummated act. “The established principle is that when the events sought to be prevented by injunction or prohibition have already happened, nothing more could be enjoined or prohibited. Thus the instant Petition is moot and academic,” (Emerito M. Ramos, et al,  versus Court of Appeals, et al, G.R. Nos. 80909, May 24, 1989), another jurisprudence quoted by Fuertes went. Dumaluan's suspension stemmed from the case filed against by Councilors Telesforo Mejos, Cereno Hormachuelos and Dennis Hora, treasurer Rena Guivencan and budget officer Catalino Sumaylo. They alleged that Dumaluan receives his representation and transportation allowance (RATA) and is thus no longer allowed to charge gasoline purchases for his personal vehicles.

The complainants claimed that surprisingly during the month of January 2005, Dumaluan, while collecting his monthly RATA, nonetheless charged to the municipality the total amount of P5,661.23 representing payment of gasoline purchased for his personal vehicle.  In resolving the complaint, the Ombudsman said the issue is whether or not the mayor's act of charging his personal gasoline and diesel fuel expenses to the account of the municipality of Panglao constitutes an illegal act or corrupt practice. Gutierrez noted that Dumaluan himself admitted to the fueling of his private vehicles at the expense of the municipality. “The admission is of primary significance because it actually settles the above-stated issue and answers the underlying question in the affirmative,” the order noted. In finding Dumaluan guilty of simple misconduct, Gutierrez meted the six-month suspension without pay and benefits. Gutierrez also found municipal accountant Elvira Clenuar guilty of simple neglect of duty and suspended her for one month without pay.

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