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FIRST DIVISION

DR. ROGER R. POSADAS andDR. ROLANDO P. DA YCO

Petitioners,

-versus-

SANDIGANBA Y AN andPEOPLE OF THE PHILIPPINES

Respondents.

G.R. Nos. 168951 169000

Present:

BERSAMIN, JAct ing Chairperson

ABAD,*VILLARAMA, JR.,MENDOZA,** andREYES, JJ.

Promulgated:

UL 7 2 13

DECISION

VILLARAMA JR. J :

Petitioners assail their conviction for Violation of Section 3( e) ofRepublic Act (R.A.) No. 3019 (The Anti-Graft and Corrupt Practices Act)and Section 7(b) of R.A. No. 6713 (The Code of Conduct and EthicalStandards for Public Officials and Employees) under Decision 1 dated June

28, 2005 of the Sandiganbayan in Crim. Case Nos. 25465-66.

The Facts

Petitioner Dr. Roger R. Posadas (Dr. Posadas), a Ph.D. in RelativityPhysics graduate from the University of Pittsburgh, is a longtime professorand former Dean of the College of Science at the University of thePhilippines-Diliman Campus (UP Diliman). He was appointed by the Boardof Regents (BOR) of the University of the Philippines System as UPDiliman Chancellor for a three-year term starting November 1 1993 andending October 31, 1996.

Designated additional member per Raffle dated July I, 2013.Designated additional memb er per Raffle dated May 27, 2013.Rollo pp. 48-71. Penned by Associate Justice Jose R. Hernandez with Associate Justices Gregory S.Ong and Rodolfo A. Ponferrada concurring.

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During his term as Chancellor, Dr. Posadasisone of the leading figuresin the emerging inter-disciplinary field of technology management in thePhilippines.Upon the recommendation of the UP Diliman Task Force onScience and Technology Assessment, Management and Planning composedof deans and professors from the various colleges in UP Diliman, the BORon February 23, 1995 approved the establishment of the TechnologyManagement Center (TMC) under the direct supervision of the Office of theChancellor, UPDiliman.When the TMC became operational in June 1995,the Task Force on Science and Technology Assessment, Management andPlanning wrote then UP President Dr. Emil Q. Javier, nominating Dr.Posadas for the position of TMC Director. For undisclosed reason, Dr.Posadas declined the nomination and instead he (Dr. Posadas) designatedProf. Jose Tabbada of the College of Public Administration as ActingDirector of TMC.

On July 26, 1995, Dr. Posadas submitted to the National Economicand Development Authority (NEDA) an Application for Fundingof his

proposed project entitled“Institutionalization of Technology Management atthe University of the Philippines in Diliman” (TMC Project). The TMCProject, to be funded by a grant from the Canadian InternationalDevelopment Agency (CIDA), aimed to design and develop ten newgraduate courses in technology management for the diploma, master’s anddoctoral programs to be offered by TMC. 2

On September 18, 1995, a Memorandum of Agreement 3 (MOA) wasexecuted between Dr. Posadas, on behalf of UP-Diliman, and the PhilippineInstitute for Development Studies (PIDS) as the Local Executing Agency ofthe Policy, Training and Technical Assistance Facility (PTTAF) of CIDA.Under the MOA, CIDA shall provide the funding for the total project cost(P5,442,400.00), with the NEDA as the designated PTTAF ProjectImplementor for the Government of the Philippines, while UPDiliman shalldirect, manage and implement all activities under the approved project withcounterpart funding in the amount of P4,228,524.00.

In a letter dated July 30, 1995, the President of Hua Qiao Universityin Fujian Province, China invited Dr. Posadas and a delegation from UPDilimanto visit on October 30 to November 6, 1995. On October 5, 1995,then Senior Deputy Executive Secretary Leonardo A. Quisumbing (retiredMember of this Court) issued the Authority toTravel for the UP Dilimandelegationheaded by Dr. Posadas. Among those who joined the delegationwere Dr. Amaryllis Torres and Dr. Rosario Yu, UPDiliman’s Vice-Chancellor for Academic Affairs and Vice-Chancellor for Student Affairs,

respectively.4

Under Administrative Order (AO) No. 95-170 dated October24, 1995, Dr. Posadas designated petitioner Dr. Rolando P. Dayco (Dr.Dayco), Vice-Chancellor for Administrative Affairs, as Officer-In-Charge

2 Exhibits “2” – “2-a,” folder of exhibits (Defense).3 Exhibit “24,” id.4 Exhibit “5,” id.

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(OIC) of UPDiliman effective October 30, 1995 until November 6, 1995.This was followed by AO No. 95-170-A dated October 27, 1995, whichamended the previous order by extendingthe OIC designation of Dr. Daycoto November 7, 1995. 5

On November 7, 1995, Dr. Dayco appointedDr. Posadas as ProjectDirector of UP TMC effective September 18, 1995 up to September 17,1996.In another undated “Contract for Consultancy Services” signed by Dr.Dayco, Dr. Posadas was hired as Consultant for the TMC Project for thesame period. 6As evidenced by disbursement vouchers and admitted by Dr.Posadas, the latter received his “honoraria”(P30,000.00 per month) andconsultancy fees (totaling P100,000.00) as Project Director and Consultantof the TMC Project until May 1996 when the Commission on Audit (COA)raised questions on the legality of the said fees. 7

In August 1996, payment of the subject “honoraria” and fees wassuspended by COA Resident Auditor Romeo J. Pulido who noted thefollowing deficiencies:

1. Honoraria were in excess of the rates provided for under the NationalCompensation Circular No. 73, dated March 1, 1996, x x x.

2. Legal basis for designating the incumbent Chancellor as ProjectDirector by the Officer-In-Charge (OIC), considering that the lattercan assume the post only in the absence of the former. An OIC cannotvalidly designate since the authority to designate/appoint is among thefunctions of the Chancellor which cannot be delegated as provided inthe University Charter. Moreover, the authority to appoint can never

be delegated since it involves discretion.

3. On the assumption that the designation of the Chancellor as ProjectDirector and Consultant is valid, collecting the remuneration for both

positions amount to double compensation which is contrary to existingauditing rules and regulations. 8

In a Memorandum9

dated September 16, 1996, UP’s Chief LegalOfficer Marichu C. Lambino addressed the foregoing concerns of COAAuditor Pulido.Atty. Lambino stated that (a) the compensation received byDr. Posadas are in the nature of consultancy fees and hence expresslyexempted by Department of Budget and Management (DBM)NationalCompensation Circular (NCC) No. 75 dated March 11, 1995; (b) the TMCProject, being a training program, is likewise exempted from the coverage of

NEDA Guidelines on the Procurement of Consulting Services forGovernment Projects; and (c) under Civil Service Commission (CSC)Memorandum Circular (MC) No. 43, series of 1993 “Streamlining andDeregulating Human Resource Development Functions” UP is authorized,

5 Exhibits “7” and “8,” id.6 Exhibits “C-4” and “C-5,” folder of exhibits (Prosecution).7 Joint Stipulation of Facts, records, Vol. I, p. 284; Exhibits “D-2,” “E-2” to “E-4,” folder of exhibits

(Prosecution).8 Exhibit “12,” folder of exhibits (Defense).9 Exhibit “13,” id.

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without prior approval from the CSC, to determine the rates of honorariumfor government personnel participating as resource persons, coordinator, andfacilitator, in training programs. On the issue of double compensation, Atty.Lambino pointed out that Dr. Posadas was appointed Project Director

because of managerial expertise, and his skills in supervising personnel whoare involved in an academic undertaking, and as Consultant because of hisexpertise in technology management. Finding theseexplanations/justifications acceptable, Auditor Pulido lifted the notices ofsuspension in September 1997.

However, even before the issuance of the suspension notices, then UPPresident Dr. Emil Q. Javier, ordered an investigation on the basis of anadministrative complaint filed by Mrs. Ofelia L. Del Mundo, a staff of theUniversity Library who was detailed at the TMC as its AdministrativeOfficer. On July 24, 1996, President Javier created a Fact-FindingCommittee to gather, review and evaluate pertinent documents regardingcertain transactions of the TMC. 10 After the conduct of a preliminaryinvestigation and finding a prima facie case against the petitioners, PresidentJavier issued the formal charges 11 for Grave Misconduct and Abuse ofAuthority. Pursuant to the University’s “Rules and Regulations on theDiscipline of Faculty Members and Employees approved at the 704 th Meeting of the Board of Regents on January 11, 1963,” 12 an AdministrativeDisciplinary Tribunal (ADT) was constituted, chaired by Atty. Arturo E.

Balbastro, a faculty member of the UP College of Law.

On August 21, 1998, the ADT submitted its Report 13 (ADT Case 96-001) to President Javier. The ADT found petitioners guilty of serious orgrave misconduct and recommended the penalty of dismissal in accordancewith CSC Memorandum Circular No. 30, series of 1989, as well as Article250 of the University Code. The Report likewise stated that the acts of

petitioners for which they were held administratively liable may warrant prosecution under Section 3(h) and (i) of R.A. No. 3019. Under the Order 14 dated August 25, 1998 signed by President Javier, petitioners weredismissed from the service.

On September 3, 1998, Atty. Carmelita Yadao-Guno in her capacityas General Counsel of UP formally endorsed the findings andrecommendations of the ADT to the Ombudsman. 15 The case was docketedas OMB-0-98-1843.

Meanwhile, the BOR at its 1126 th meeting on November 26, 1998,resolved petitioners’ appeal in ADT Case 96-001, as follows:

10 Exhibit “50,” id.11 Exhibits “A-4” and “A-5,” folder of exhibits (Prosecution).12 Exhibit “A-2,” id.13 Exhibit “A-6,” id.14 Exhibit “A-3,” id.15 Exhibit “A,” id.

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1. The Board affirmed the ADT decision finding the respondents guiltyof grave misconduct and imposed on them the penalty of forcedresignation with the accessory penalties defined in the Omnibus RulesImplementing Book V of Executive Order 292 and other PertinentCivil Service Laws – i.e., cancellation of eligibility, forfeiture of all

leave credits and retirement benefits, and disqualification fromgovernment service for one year.

2. If after one year they should reapply to the University, they mustrender an apology to the University and their reappointments will besubject to Board approval.

3. The respondents are permanently disqualified from holding anyadministrative position in the University.

4. The decision takes effect immediately. 16

Satisfied with the BOR’s action, petitioners caused the withdrawal oftheir appeal before the CSC. 17

On June 9, 1999, the Evaluation and Preliminary Investigation Bureauof the Office of Ombudsman recommended the dismissal of the chargesagainst petitioners for insufficiency of evidence. However, saidrecommendation was disapproved by then Ombudsman Aniano A. Desiertowho ordered that petitioners be indicted for violation of Section 3(e) of R.A.

No. 3019 and Section 7(b) in relation to Section 11 of R.A. No. 6713. 18

The corresponding Informations 19were thus filed against the petitioners before the Sandiganbayan (Criminal Case Nos. 25465-66), asfollow:

Criminal Case No. 25465

That on or about 7 November 1995, or sometime prior or subsequentthereto, in Quezon City, Philippines and within the jurisdiction of thisHonorable Court, the above-named accused, both high-ranking public

officers, ROGER DELA ROSA POSADAS, being then the Chancellorand a faculty member of the University of the Philippines-DilimanCampus, and ROLANDO PASCUAL DAYCO, being then the Vice-Chancellor of the said university and Officer-In-Charge of the Office ofthe Chancellor, committing the crime herein charged in relation to, whilein the performance and taking advantage of their official andadministrative functions,and conspiring and confederating with andmutually helping each other, did then and there willfully, unlawfully andcriminally give unwarranted benefits, privilege or advantage to accusedPOSADAS, when accused DAYCO appointed or designated accusedPOSADAS as a Project Director of the lone project, Institutionalization ofthe Management of Technology at U.P. Diliman, of the TechnologyManagement Center (TMC) of the Office of the Chancellor, U.P. Diliman,which enabled or caused the disbursement and payment of monthly salaryof P30,000.00 of accused POSADAS, duly received by the latter, for the

16 Exhibit “G,” id.17 Exhibit “H,” id.18 Records, Vol. I, pp. 3-11.19 Records, Vol. III, pp. 1-4.

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period 18 September 1995 to 17 September 1996, with accusedPOSADAS also receiving his salaries as Chancellor and faculty memberof U.P. Diliman during this period, and both accused knowing fully wellthat the appointment of accused POSADAS was beyond the power orauthority of accused DAYCO as an OIC and likewise violative of the law,

rules and regulations against multiple positions, double compensation andretroactivity of appointment, thereby causing undue injury to theGovernment in the amount of PESOS: THREE HUNDRED SIXTYTHOUSAND (P360,000.00), to the damage and prejudice of theGovernment.

CONTRARY TO LAW.

Criminal Case No. 25466

That on or about 7 November 1995, or sometime prior or subsequent

thereto, in Quezon City, Philippines and within the jurisdiction of thisHonorable Court, the above-named accused, both high-ranking publicofficers, ROGER DELA ROSA POSADAS, being then the Chancellorand a faculty member of the University of the Philippines-DilimanCampus, and ROLANDO PASCUAL DAYCO, being then the Vice-Chancellor of the said university and Officer-In-Charge of the Office ofthe Chancellor, committing the crime herein charged in relation to, whilein the performance and taking advantage of their official andadministrative functions, and conspiring and confederating with andmutually helping each other, did then and there willfully, unlawfully andcriminally engage in the unauthorized private practice of accused

POSADAS’s profession as a technology manager, when accused DAYCOappointed or designated accused POSADAS as a consultant to the project,Institutionalization of the Management of Technology at U.P. Diliman, ofthe Technology Management Center (TMC) of the Office of theChancellor, U.P. Diliman, which enabled or caused the disbursement and

payment of consultancy fees in the amount of P100,000.00 to accusedPOSADAS, duly received by the latter, with respondent POSADAS alsoreceiving his salaries as Chancellor and faculty member of U.P. Diliman,and both accused knowing fully well that the appointment to andacceptance of the position of consultant by respondent POSADAS waswithout authority from the latter’s superior(s) or the U.P. Board ofRegents, to the damage and prejudice of the Government service.

CONTRARY TO LAW.

Dr. Dayco and Dr. Posadas were duly arraigned on June 15, 2000 andMay 28, 2001, respectively, both pleading not guilty to the charges againstthem. 20

Ruling of the Sandiganbayan

After due proceedings, the Sandiganbayan rendered its Decision 21 dated June 28, 2005, the decretal portion of which reads:

20 Records, Vol. I, pp. 89 and 219.21 Rollo, pp. 48-71.

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ACCORDINGLY , this Court finds both accused Roger R.Posadas and Rolando P. Dayco GUILTY beyond reasonable doubt ofviolating Section 3(e) of RA 3019 and Section 7(b) of RA 6713 and aresentenced to suffer the following penalties:

For violation of Section 3(e) of RA 3019: accused Posadas andDayco are sentenced to suffer in prison the indeterminate penalty of nine(9) years and one day as minimum and twelve (12) years as maximum,with the accessory penalty of perpetual disqualification from public office.Both accused are directed to jointly and severally indemnify theGovernment of the Republic of the Philippines the amount of THREEHUNDRED THIRTY SIX THOUSAND PESOS (P336,000.00).

For violation of Section 7(b) of RA 6713: accused Posadas andDayco are sentenced to suffer in prison the maximum penalty of five (5)years and disqualification to hold public office.

SO ORDERED. 22

The Sandiganbayan held that the evidence supports a finding ofevident bad faith on the part of petitioners who, knowing very well thelimitations of Dr. Dayco’s power as OIC, effected the appointment of Dr.Posadas as TMC Project Director and Consultant. These limitations are

based on the nature of the power to appoint which is merely delegated to theChancellor by the BOR, Section 204 of the Government Accounting andAuditing Manual, and CSC MC No. 38, s. 1993 on non-retroactivity of

appointments.

The Sandiganbayan concluded that petitioners’ acts caused undueinjury to the Government with the receipt by Dr. Posadas of salaries andconsultancy fees. Petitioners’ contention that the Government did not sufferloss or damage since the funding for the TMC Project came from CIDA wasrejected by the Sandiganbayan which stated that from the moment UPreceived the CIDA funds intended for the TMC Project, said funds became“impressed with public attributes or character,” as in fact it was subjected tothe control of UP and audited by the COA.

The Sandiganbayan likewise found no merit in petitioners’ claim thatthey were just victims of “university politics”as they were staunch critics ofPresident Javier. Petitioners adduced documentary and testimonial evidenceto show that Ms. Del Mundo’s filing of a complaint against petitioners wastriggered by the fact that it was Dr. Posadas who ordered an administrativeinvestigation against her and recalled her to the University Library, whichincident led to the resignation of Prof. Tabbada from TMC. However, theSandiganbayan stressed that regardless of the reason for the filing of the

cases against petitioners at the university level, these cases would not havecome into being if no law has been violated in the first place.

22 Id. at 70.

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Petitioners filed a motion for reconsideration but it was denied duecourse for the reason that it has not been set for hearing as required by therules, hence the motion is pro forma .

In this petition for certiorari, petitioners allege grave abuse ofdiscretion and blatant violation of their constitutionally guaranteed right todue process.

The Issues

The Court is asked to resolve whether the Sandiganbayan committedgrave abuse of discretion amounting to lack of or in excess of jurisdiction:

(1) in denying petitioners’ motion for reconsideration on the ground that itwas not set for hearing; and (2) in convicting petitioners of Violation ofSection 3(e) of R.A. No. 3019 and Section 7(b) of R.A. No. 6713 on the

basis of facts not supported by evidence and on inapplicable rules and principles.

Petitioners’ Arguments

Petitioners argue that the July 19, 2005 Resolution denying theirmotion for reconsideration is not only baseless, but capricious, arbitrary andmost unjust because the Revised Internal Rules of the Sandiganbayan doesnot require that the motion for reconsideration be set for hearing. They citethe case of Alvarez v. Sandiganbayan 23 where this Court ruled that motionsfor reconsideration of decisions or final orders of the Sandiganbayan are notgoverned by Rule 15 of the Rules of Court, as these may be filed within 15days from promulgation or notice of the judgment or final order “upon thegrounds, in the form and subject to the requirements, for motions for newtrial in criminal cases under Rule 121 of the Rules of Court.”

On the charges of graft, petitioners assert that they did not act with bad faith, manifest partiality or gross inexcusable negligence. They reiteratethat Dr. Dayco’s designation as OIC Chancellor was adjusted for one daymerely to accommodate the change in the official travel schedule of Dr.Posadas to China. The appointment of Dr. Posadas as TMC Project Directorand Consultant was a valid appointment and was made retroactive for noother reason than to synchronize the activities relative to the TMC Projectwith the project schedule as approved by the funding agency. The power ofappointment was within the power of the Chancellor to delegate to the OICChancellor, it not being expressly prohibited by the University rules. Such

practice, in fact, is not an unusual occurrence in UP.

23 278 Phil. 566, 577 (1991).

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Petitioners also contend that no injury was caused to the government because the TMC Project budget came from foreign funds, hence not anexpense incurred by the Government and neither did UP incur any expensein relation to the said project, its counterpart funding was not in the form ofmoney.Consequently, there can be no conviction under the law in theabsence of real or actual damage suffered.

On the “honoraria” and fees received by Dr. Posadas as ProjectDirector and Consultant, petitioners insist they cannot be held liable fordouble compensation because these were given for separate servicesrendered by Dr. Posadas. As opined by the UP Chief Legal Officer, thecompensation were in the nature of consultancy fees being received by UP

personnel in their capacity as private persons for services to a project outsideof their official time, hence it is not covered by the DBM NCC No. 75.Moreover, petitioners stress that Dr. Posadas did not receive anyunwarranted benefit, advantage or preference in his appointment as TMCProject Director and Consultant. Dr. Posadas possesses the superiorqualifications and expertise in the field of technology management necessaryto ensure that the project was a success. In fact, his colleagues wereexpecting him to head the TMC Project and did not oppose his appointment.

As to the charge of unauthorized outside employment, petitioners point out that the University rules do not require clearance from the UP

President to engage in consultancy work and the same rules do not prohibithim from performing consultancy work for a project such as TMC.Therefore, Dr. Posadas’ appointment as TMC Project Director andConsultant were not prohibited outside employment.

Petitioners reiterate their“university politics” defense, claiming thatPresident Javier at the time chose to champion Del Mundo’s complaintmotivated by vengeance and spite against two of his staunch critics. Thus,despite knowledge of the opinion of the UP Chief Legal Officer clearing

petitioners of any wrongdoing, President Javier underhandedly caused thefiling of administrative charges in the ADT.

Petitioners further submit that the complainant before theOmbudsman, Atty. Carmelita Yadao, was incompetent as she had no

personal knowledge of the contents thereof, which were merely narrated orreported to her in her capacity as General Counsel of UP at that time. Theletter-complaint should not have been given due course as it was based on

pure hearsay and its main proponent suffered from conflicting interests because she had earlier endorsed the MOA which included the compensation

package for TMC Project Director and Consultant.

Finally, petitioners deny having acted in conspiracy as there was noevidence to prove it. The only assumed fact considered by theSandiganbayan is based on its erroneous hypothesis – the alleged act of“extending” the period of OIC Chancellor for one day to accommodate Dr.

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Posadas. Dr. Dayco did not even gain anything from his designation of Dr.Posadas. Thus, in the absence of clear and convincing proof, petitionerscannot be held liable as conspirators.

Our Ruling

The petition has no merit.

Notice of Hearingin Motions forReconsiderationIs Mandatory

Contrary to petitioners’ stance, the 2002 Revised Internal Rules of theSandiganbayan requires a motion for reconsideration to be set for hearing, asit provides under Rule VII:

SECTION 1. Motion Day. - Except for motions which may beacted upon ex parte , all motions shall be scheduled for hearings on aFriday, or if that day is a non-working holiday, on the next working day.

Motions requiring immediate action may be acted upon on shorternotice.

In appealed cases, the provisions of Sec. 3, Rule 49 of the 1997

Rules of Civil Procedure, as amended, on Motions shall apply. (Emphasissupplied.)

Under the Rules of Sandiganbayan, effective January 10, 1979, a petition for reconsideration of a judgment or final order may be filed uponthe grounds, in the form and subject to the requirements, for motions for newtrial in criminal cases under Rule 121 of the Rules of Court. 24 In the case of

Alvarezv. Sandiganbayan 25 decided in 1991, the Court upheld theSandiganbayan in not considering “the failure of the movant to fix the place,date and time of the hearing of his motion a substantial defect, for instead ofgiving the motion a short shrift, it set the incident for hearing, and evengranted the prosecution ten days from [notice] within which tooppose/comment.” The Court noted what was then the practice of theSandigabayan itself, rather than the movant, to determine the date and timeof hearings of motions. The peculiar circumstances of said caseheavilyweighed in favor of relaxation of the rules, with the Court’s findingthat the evidence presented against the petitioner does not fulfill the test ofmoral certainty and may not be deemed sufficient to support a conviction.Hence, the Court was not prepared “to declare that [petitioner’s] omission to

set his motion for hearing is so grievous an error as to foreclose the award tohim of the relief to which he is otherwise entitled.”

24 Rule XII.25 Supra note 23, at 576-578.

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In any event, the mandatory setting for hearing a motion forreconsideration to reverse or modify a judgment or final order of theSandiganbayan is already settled. This Court categorically ruled in therecent case of Flores v. People 26

Flores filed a motion for the reconsideration. As the motion didnotcontain any notice of hearing, the Prosecution filed its Motion toExpungefrom the Records Accused’s Motion for Reconsideration.”

In its Resolution, dated November 29, 2007, theSandiganbayandenied the motion for being a mere scrap of paper as it didnot contain anotice of hearing and disposed as follows:

WHEREFORE , in view of the foregoing, the Motion for Reconsideration of accused Flores is considered pro forma which did not toll the running of the period to

appeal, and thus, the assailed judgment of this Court has become FINAL and EXECUTORY .

SO ORDERED .

x x x x

Flores claims that the outright denial of his motion forreconsiderationby the Sandiganbayan on a mere technicality amounts to aviolation of hisright to due process. The dismissal rendered final andexecutory the assaileddecision which was replete with baseless conjecturesand conclusions thatwere contrary to the evidence on record. He points outthat a relaxation ofprocedural rules is justified by the merits of this case asthe facts, viewedfrom the proper and objective perspective, indubitablydemonstrate self-defenseon his part.

Flores argues that he fully complied with the requirements ofSection2 of Rule 37 and Section 4 of Rule 121 of the Rules of Court whenthemotion itself was served upon the prosecution and the latter, infact,admitted receiving a copy. For Flores, such judicial admissionamounts togiving due notice of the motion which is the intent behind thesaid rules. Hefurther argues that a hearing on a motion for reconsiderationis not necessaryas no further proceeding, such as a hearing, is requiredunder Section 3 ofRule 121.

Flores’ argument fails to persuade this Court.

Section 5, Rule 15 of the Rules of Court reads:

SECTION 5. Notice of hearing . – The notice ofhearing shallbe addressed to all parties concerned, and shallspecify the time anddate of the hearing which must not belater than ten (10) days afterthe filing of the motion.

Section 2, Rule 37 provides:

SEC. 2. Contents of motion for new trial orreconsiderationand notice thereof . – The motion shall bemade in writing statingthe ground or grounds therefore, a

26 G.R. No. 181354, February 27, 2013.

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written notice of which shall beserved by the movant on theadverse party.

x x x x

A pro forma motion for new trial or reconsideration shallnot tollthe reglementary period of appeal.

Section 4, Rule 121 states:

SEC. 4. Form of motion and notice to the prosecutor . – The motion for a new trial or reconsiderationshall be in writing and shall state the grounds on which it is

based. x x x. Notice of the motion for new trial orreconsideration shall be given to the prosecutor.

As correctly stated by the Office of the Special Prosecutor ( OSP ),

Sec.2 of Rule 37 and Sec. 4 of Rule 121 should be read in conjunctionwith Sec.5 of Rule 15 of the Rules of Court. Basic is the rule that everymotion mustbe set for hearing by the movant except for those motionswhich the courtmay act upon without prejudice to the rights of the adverse

party. Thenotice of hearing must be addressed to all parties and mustspecify the timeand date of the hearing, with proof of service.

This Court has indeed held, time and again, that under Sections 4and5 of Rule 15 of the Rules of Court, the requirement is mandatory.Failure tocomply with the requirement renders the motion defective.“As a rule, amotion without a notice of hearing is considered pro

forma and does notaffect the reglementary period for the appeal orthe filing of the requisitepleading.”

In this case, as Flores committed a procedural lapse in failing toinclude a notice of hearing, his motion was a worthless piece of paper withno legal effect whatsoever. Thus, his motion was properly dismissed bytheSandiganbayan. 27 (Emphasis supplied.)

We thus find no grave abuse of discretion committed by theSandiganbayan when it denied due course to petitioners’ motion forreconsideration on the ground that it “has not been set for hearing asrequired by the rules” and the same is “deemed pro forma .”

Violation of Section 3(e)of R.A. No. 3019

The essential elements of the crime defined in Section 3(e) of R.A. No. 3019, otherwise known as The Anti-Graft and Corrupt Practices Act,are:

1. The accused must be a public officer discharging administrative, judicial or official functions;

2. He must have acted with manifest partiality, evident bad faith orinexcusable negligence; and

27 Id. at 6-8.

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3. That his action caused any undue injury to any party, including thegovernment, or giving any private party unwarranted benefits,advantage or preference in the discharge of his functions. 28

There is no question regarding the presence of the first requisiteconsidering that at the time the subject appointments were made, both

petitioners were faculty members and holding administrative positions in UPDiliman. What petitioners dispute is the existence of the second and thirdrequisites.

In Criminal Case No. 25465, the information charged that petitionerswillfully, unlawfully and criminally gave unwarranted benefits to Dr.Posadas in appointing him as TMC Project Director, in violation of the

prohibition against multiple positions and the rule on non-retroactivity of

appointments, thereby causing undue injury to the Government.

In Cabrera v. Sandiganbayan, 29 this Court explained that there aretwo (2) ways by which a public official violates Section 3(e) of R.A. No.3019 in the performance of his functions, namely: (a) by causing undueinjury to any party, including the Government; or (b) by giving any private

party any unwarranted benefits, advantage or preference. The accused may be charged under either mode or under both . Moreover, in Quibal v.Sandiganbayan ,30 the Court held that the use of the disjunctive term“or”connotes that either act qualifies as a violation of Section 3(e) of R.A. No.3019. 31 Here, petitioners were charged with committing the offense under

both modes.

Upon the entire evidence on record, the Sandiganbayan wasconvinced that petitioners were guilty of causing undue injury to theGovernment. In Llorente, Jr. v. Sandiganbayan ,32 this Court said that tohold a person liable for causing undue injury under Section 3(e), theconcurrence of the following elements must be established beyondreasonable doubt by the prosecution:

(1) that the accused is a public officer or a private person charged inconspiracy with the former;

(2) that said public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public positions;

(3) that he or she causes undue injury to any party, whether thegovernment or a private party; and

(4) that the public officer has acted with manifest partiality, evident badfaith or gross inexcusable negligence.

28 Jacinto v. Sandiganbayan, 258-A Phil. 20, 26 (1989).29 484 Phil. 350, 360(2004).30 314 Phil. 66 (1995).31 Velasco v. Sandiganbayan, 492 Phil. 669, 677(2005).32 350 Phil. 820, 837 (1998).

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Decision 14 G.R. Nos. 168951 & 169000

We sustain the decision of the Sandiganbayan holding petitionersliable for causing undue injury to the Government in appointing Dr. Posadasas TMC Project Director with evident bad faith.

Bad faith does not simply connote bad judgment or negligence; itimputes a dishonest purpose or some moral obliquity and conscious doing ofa wrong; a breach of sworn duty through some motive or intent or ill will; it

partakes of the nature of fraud. 33It contemplates a state of mind affirmativelyoperating with furtive design or some motive of self interest or ill will forulterior purposes. 34Evident bad faith connotes a manifest deliberate intent onthe part of the accused to do wrong or cause damage. 35

In Pecho v. Sandiganbayan ,36 the Court en banc defined injury as“any wrong or damage done to another, either in his person, or in his rights,reputation or property; the invasion of any legally protected interests ofanother.” It must be more than necessary or are excessive, improper orillegal. It is required that the undue injury caused by the positive or passiveacts of the accused be quantifiable and demonstrable and proven to the pointof moral certainty. 37“Undue” means illegal, immoral, unlawful, void ofequity and moderations. 38

In this case, that petitioners acted in evident bad faith was dulyestablished by the evidence. We recall that the MOA was executed on

September 18, 1995 and became effective upon the signature of the parties.39

Between that date and the China trip scheduled in the first week of

November (the invitation was dated July 30, 1995), Dr. Posadas could havealready appointed the Project Director and Consultant as indeed theretroactive appointment was even justified by them because supposedly“project activities” have already started by September 18, 1995. And yet,he waited until the China trip so that in his absence the designated OICChancellor, Dr. Dayco, would be the one to issue the appointment.Apparently, Dr. Posadas’ appointment by Dr. Dayco in an OIC capacity was

pre-conceived. Prof. Jose Tabbada testified that when he was summoned byDr. Posadas to his office, the latter asked him how he (Posadas) could beappointed TMC Project Director. He then suggested that Dr. Dayco as OICChancellor can appoint him to the position and even drafted the memo forthis purpose. He admitted that he gave such advice with some reservations

but it turned out to have been pursued by petitioners. 40

33 Llorente, Jr. v. Sandiganbayan, id. at 843, citing Spiegel v. Beacon Participations , 8 NE 2 nd Series,895, 1007.

34 Id., citing Air France v. Carrascoso, No. L-21438, September 28, 1966, 18 SCRA 155, 166-167.35 Id., citing Marcelo v. Sandiganbayan, G.R. No. 69983, May 14, 1990, 185 SCRA 346.36 G.R. No. 111399, November 14, 1994, 238 SCRA 116, 133.37 Cabrera v. Sandiganbayan, supra note 29, at 364-365, citing Jacinto v. Sandiganbayan, supra note 28,

at 27 and Llorente v. Sandiganbayan, supra note 32, at 838.38 Id. at 364.39 MOA, Sec. 19, Exhibit “24,” folder of exhibits (Defense).40 TSN, January 7, 2002, pp. 14-16, 18-19.

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However, the Sandiganbayan ruled that the delegated authority of theOIC Chancellor has limitations and did not include the power to appoint.

Section 204 of the Government Accounting and Auditing Manual

(Volume I on Government Auditing Rules and Regulations) provides:Sec. 204. Appointment issued by an officer-in-charge. -- A person

designated in an acting capacity may be differentiated from one who isdesignated merely as an Officer-in-Charge (OIC). In the latter case, theOIC enjoys limited powers which, are confined to functions ofadministration and ensuring that the office continues its usual activities.The OIC may not be deemed to possess the power to appoint employees asthe same involves the exercise of discretion which is beyond the power ofan OIC (CSC Res. 1692, Oct. 20, 1978).

To prove the alleged practice in the University of an OIC appointing aChancellor to a certain position, petitioners presented copies of temporaryappointment papers issued by OIC Chancellor Paz G. Ramos to formerChancellor Ernesto G. Tabujara who was appointed Consultant-In-Charge ofthe Campus Planning, Development and Maintenance Office, UP Dilimanwith P2,000.00 monthly honorarium effective January 1, 1986 to December31, 1986. It must be noted, however, that the said appointment was made

by the OIC “by authority of the Board of Regents” and these were actuallyapproved and signed by then Secretary of the University, Prof. Martin V.Gregorio, while the renewal appointment was approved by Secretary of theUniversity Prof. Emerlinda R. Roman. Both Gregorio and Roman signed the

Notification of Approval of Temporary Appointment. 41

Petitioners nonetheless argue that the appointments made by Dr.Dayco were valid on the basis of Section 9(a) of the Resolution of the BORreorganizing UP into the UP System adopted at its 828 th meeting onDecember 21, 1972, as amended at its 863 rd meeting on July 31, 1975.Under said resolution, the BOR authorized the Chancellor of an autonomousuniversity of the UP System to delegate his functions and responsibilities

which have been assigned or delegated to him by the BOR, unless instructedotherwise by the BOR. It also enumerated those functions that may not bedelegated, among which is:

B. Functions That May Not Be Delegatedx x x x

f. Authority to approve the following appointments –

(1) those covered in II, C, 1, and e of the President’s MemorandumCircular No. 30 dated August 28, 1975; and

(2) those covered in II, C, 4, a through c of the aforecitedmemorandum circular of the President;

x x x x 42

41 Exhibits “19,”“19-A,”“19-B,”“20,”“20-A,”“20-B,”“21” and “21-A,”folder of exhibits (Defense).42 Exhibit “25,” id.

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Decision 16 G.R. Nos. 168951 & 169000

MC No. 30 dated August 28, 1975 issued by former UP PresidentOnofre D. Corpuz providedfor “Operating Guidelines on Appointments andRelated Personnel Transactions in the University System,” whichspecifically delineated the authority to appoint of university officials.

The pertinent provisions of said MCNo. 30 read:

C. Delegated Authority of the Chancellor to Appoint

1. The Chancellor of an autonomous University approves appointmentsto the following positions:

a. directors or heads and assistant directors or assistant heads ofunits supervised by or attached to principal units, except thosewhose starting salaries are equal to or higher than that ofassociate professor;

b. program or project directors ;

x x x x

5. The Chancellor approves the appointment of personnel, regardlessof rank or salary range, incidental to employment in research

projects, study and training programs and other programs orprojects undertaken in collaboration with, or with the supportof, public or private institutions or persons.

TYPES OF APPOINTMENT/PERSONNEL ACTIONCOVERED:

Appointment as used in II, C, 5 above includes alltypes of appointment and personnel action pertainingto appointment, except transfer to permanency offaculty members. (Emphasis supplied.)

According to petitioners, since appointments falling under II, C, 5 wasnot specifically mentioned in the enumeration of those functions of theChancellor that may not be delegated, it follows that such appointments may

be validly delegated, as in this case, the appointments issued by OICChancellor Dayco to Dr. Posadas as TMC Project Director and Consultant.Moreover, it is argued that in the BOR Resolution itself, the designated OICChancellor was granted full powers:

E. Extent of Authority of One Appointed in an Acting/Officer-in-ChargeCapacity

One appointed/designated, in an acting or officer-in-chargecapacity, to the office of chancellor shall discharge all the functions of

the position unless instructed otherwise by the regular incumbent, andin any case, subject to the latter’s instructions, to the policies of theBoard of Regents and to the provisions of D hereinabove and of Fhereinbelow; provided, that “all the functions of the position” as usedin and for purposes of this resolution shall be construed as inclusive ofall the functions assigned to the position by competent Universityauthority and all such functions as usually pertain, or are “inherent,” to

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Decision 17 G.R. Nos. 168951 & 169000

the position although not expressly assigned thereto by competentUniversity authority.

Petitioners’ argument fails to persuade.

It must be emphasized that the subject appointments involve not anordinary personnel or faculty member but the Chancellor himself who wasalso vested with administrative supervision over the institutionimplementing the TMC Project, TMC. Note that while II, C, 5 in MCNo. 30speaks of “personnel, regardless of rank or salary range, incidental toemployment,” the same could not possibly refer to the Chancellor himself.This is evident from the exception provided in II, B, 1where it is thePresident himself who approves the appointment, viz:

B. Delegated Authority of the President to Appoint 1. The President approves the appointment of officers and employees

(including faculty members if there are any) who are not includedin or covered by the enumerations in II, A above and of those whoare covered in II, C, 5 below who are:

a. in or directly under the Office of the President ; or b. in University-wide units; orc. in other offices or units, academic or non-academic, that are

not part of any autonomous University;

to the same extent and under the same conditions stipulated in II, C below for the delegated authority of the Chancellor of anautonomous University to appoint.

TYPES OF APPOINTMENT/PERSONNELACTIONCOVERED:

Appointment as used in II, B, 1 above includes all types ofappointment and personnel action pertaining to appointment,except transfer to permanency of faculty members. (Emphasissupplied.)

Considering that it is the Chancellor himself who is being appointedto a project covered in II, C, 5, the BOR resolution on the authority of theChancellor to delegate his functions may not be invoked because thesituation is covered by II, B, 1, the Chancellor being directly under theadministrative supervision of the UP President as the Chief ExecutiveOfficer of the University. The Chancellor, on the other hand, is the executiveofficer and the head of the faculty of the Constituent University, wholikewise performs other functions that the BOR or the President maydelegate to her/him. This is clearly indicated in the organizational structureof the UP Diliman, sourced from the Faculty Manual of the University of thePhilippines Diliman 43:

43 Published in 2003.

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Decision 18 G.R. Nos. 168951 & 169000

Thus, even granting that the subject appointments in UP Diliman, anautonomous educational institution, are not covered by Section 204 of theGovernment Accounting and Auditing Manual, they are still invalid andillegal, because the delegated authority to appoint in this case, involving as it

does the Chancellor himself, pertains to the President of the University.Indeed, the Chancellor cannot exercise the delegated authority to appoint inthe situations covered by II, C, 5 when he himself is the appointee. Thedesignated OIC likewise had no authority to make the appointment.

As to the prohibition on government officials and employees, whetherelected or appointed, from holding any other office or position in thegovernment, this is contained in Section 7, Article IX-B of the 1987Constitution, which provides:

x x x x

Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government, or any subdivision, agency or instrumentality thereof,including government-owned or controlled corporations or theirsubsidiaries. (Emphasis supplied.)

The prohibition on dual employment and double compensation in thegovernment service is further specified under Sections 1 and 2, Rule XVIII

of the Omnibus Rules Implementing Book V of E.O. No. 292,44

as follows:

44 See Re: Gross Violation of Civil Service Law on the Prohibition Against Dual Employment and Double Compensation in the Government Service Committed by Mr. Eduardo V. Escala, SC Chief Judicial Staff Officer, Security Division, Office of Administrative Services, A.M. No. 2011-04-SC, July5, 2011, 653 SCRA 141, 149-150.

Board of Regents

President

Chancellor University Council

Vice Chancellorfor Academic

Affairs

ViceChancellor forAdministration

ViceChancellor forStudent Affairs

Vice Chancellorfor Community

Affairs

Vice Chancellorfor Research andDevelopment

Deans

Faculty

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Decision 19 G.R. Nos. 168951 & 169000

Sec. 1. No appointive official shall hold any other office oremployment in the Government or any subdivision, agency orinstrumentality thereof, including government-owned or controlledcorporations with original charters or their subsidiaries, unless otherwiseallowed by law or by the primary functions of his position.

Sec. 2. No elective or appointive public officer or employee shallreceive additional, double, or indirect compensation, unless specificallyauthorized by law, xxx.

Under Section 2(d), Rule III of the Revised Omnibus Rules onAppointments and Other Personnel Actions, 45 appointments of personnelunder Foreign-assisted projects shall be issued and approved as coterminouswith the project. The MOA itself provides that the “services of thecontractual personnel of the University for the Project shall be discontinued

upon its completion or termination.” The appointment of Dr. Posadas asTMC Project Director falls within the prohibition against holding of multiple positions since there is no distinction in Section 7, Article IX-B as to theemployment status, i.e., whether permanent, temporary or coterminous.Petitioners failed to cite any law to justify Dr. Posadas’ holding ofconcurrent positions as Chancellor and TMC Project Director.

Another legal infirmity in the appointment of Dr. Posadas as TMCProject Director is the fact that it was made retroactive, in violation of CSCMC No. 38, Series of 1993, the Omnibus Guidelines on Appointments andOther Personnel Actions. Section II, 5 B (7) thereof reads:

7. Effectivity of Appointment

a. The effectivity of an appointment shall be the date of actualassumption by the appointee but not earlier than the date of issuance ofthe appointment, which is the date of signing by the appointingauthority.

b. No appointment shall be made effective earlier than the date ofissuance, except in the case of change of status in view of qualifying in

written examination, the effectivity of which is the date of release ofthe result of the examination. However, the issuance of suchappointments shall be within the period of the temporary appointmentor provided the temporary appointment has not yet expired.

x x x x

Petitioners assert that appointment as TMC Project Director is notcovered by the above rule because it is in the nature of consultancy which isno longer required to be submitted to the CSC.

A perusal of the duties and responsibilities of the TMC ProjectDirector reveals that the latter is tasked to perform the following:

45 CSC Memorandum Circular No. 40, s. 1998, as amended by CSC Memorandum Circular No. 15, s.1998.

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Decision 20 G.R. Nos. 168951 & 169000

Provide overall direction to the Project; Exercise supervision over Project personnel, including the visiting

experts; Approve the recruitment of personnel, disbursement of Project

funds, and changes in the Project activities and schedule;

Coordinate with other persons, agencies and institutions involvedin technology management; Perform such other functions as may be necessary to ensure the

efficient, orderly and effective management and timely completionof the Project. 46

The foregoing duties and responsibilities are not susceptible of partial performance or division into parts as would justify its classification intolump sum work. Neither are these advisory in nature as would make it fallunder the scope of a consultancy service. 47 The status of Dr. Posadas’

employment as TMC Project Director is a coterminous one. Under civilservice rules, appointments of personnel under foreign-assisted projects shall

be issued and approved as coterminous with the project, 48 that is, they areconsidered employees for the duration of the project, in which case, thename of the project and its completion date shall be indicated in theappointment. 49 This status of employment is to be distinguished fromcontract of services which covers lump sum work or services such as

janitorial, security or consultancy services, whose appointments need not besubmitted to the CSC for approval.

We also find no merit in petitioners’ argument that the element ofinjury caused to the Government is lacking since the budget for TMCProject came from a foreign source and hence no public funds are involved.Under the MOA, UP shall be “principally accountable for the project funds”which shall be released to and properly managed by it to ensure theattainment of the Project’s objectives. Clearly, these funds are in the natureof “trust fund” which is defined by Presidential Decree No. 1445 as “fundthat officially comes in the possession of an agency of the government or ofa public officer as trustee, agent or administrator, or that is received for thefulfillment of some obligation. 50 A trust fund may be utilized only for the“specific purpose for which the trust was created or the funds received.” 51 The Sandiganbayan thus correctly held that the funds received for the TMCProject were impressed with public attributes or character from the time itcame into UP’s possession.

The disbursement and payment of the P30,000.00 monthly salary asTMC Project Director to Dr. Posadas was improper, in view of his invalidappointment. Said amount represents the actual injury to the

46 Exhibit “55-A,”folder of exhibits (Defense).47 See CSC Resolution No. 030102 dated January 22, 2003 (Edmundo R. Calo). 48 Chua v. Civil Service Commission, G.R. No. 88979, February 7, 1992, 206 SCRA 65, 74.49 Rule III, Sec. 2,d (e), CSC Memorandum Circular No. 40, Series of 1998.50 Sec. 3(4), P.D. No. 1445.51 Sec. 4(3), id.

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Decision 21 G.R. Nos. 168951 & 169000

Government.The third requisite of Section 3(e) of R.A. No. 3019, therefore,was sufficiently established by the prosecution.

Violation of Section 7(b),R.A. No.

6713

In Criminal Case No. 25466, the charge involves the private practiceof profession prohibited under Section 7(b) of R.A. No. 6713, otherwiseknown as the Code of Conduct and Ethical Standards for Public Officialsand Employees, by appointing Dr. Posadas as Consultant of the TMCProject. Said provision reads:

SEC. 7. Prohibited Acts and Transactions. – In addition to actsand omissions of public officials and employees now prescribed in theConstitution and existing laws, the following shall constitute prohibitedacts and transactions of any public official and employee and are herebydeclared to be unlawful:

x x x x

(b) Outside employment and other activities related thereto . –Public officials and employees during their incumbency shall not:

x x x x

(2) Engage in the private practice of their profession unlessauthorized by the Constitution or law, provided that such practice will notconflict or tend to conflict with their official functions; or

x x x x

Pursuant to CSC Resolution No. 93-1881 dated May 25, 1993, acontract for consultancy services is not covered by Civil Service Law, rulesand regulations because the said position is not found in the index of

position titles approved by DBM. Accordingly, it does not need the

approval of the CSC.52

CSC MC No. 38, series of 1993 expressly providesthat consultancy services are not considered government service forretirement purposes. A “consultant” is defined as one who provides

professional advice on matters within the field of his special knowledge ortraining. There is no employer-employee relationship in the engagement ofa consultant but that of client-professional relationship. 53

Consultancy is deemed private practice of profession. Under CSCResolution 021264 54 dated September 27, 2002, accepting a consultancy jobunder a part-time status is subject to the following conditions:

52 See COA Circular No. 95-001 dated January 20, 1995 citing Office Memorandum No. 55, series of1993 of the CSC relative to the new policies on appointment.

53 CSC Resolution No. 95-6939 ( Pagaduan v. Malonzo ) dated November 2, 1995, cited in Justice ArturoD. Brion’s Dissenting Opinion in A.M. No. 10-9-15-SC, Re: Request of (Ret.) Chief Justice Artemio V.Panganiban for Recomputation of His Creditable Service for the Purpose of Re-computing His

Retirement Benefits , February 12, 2013.54 Query re: Consultancy, Mayumi Juris A. Luna.

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Decision 22 G.R. Nos. 168951 & 169000

1. It must not violate the rule against holding multiple positions ;

2. The employee/officer must obtain permission or authority from his/herhead of agency as the same constitutes private practice of profession;

3. The consultancy job must not conflict or tend to conflict with his/herofficial functions; and

4. It must not affect the effective performance of his/her duty.

In convicting petitioners, the Sandiganbayan cited Article 250 of theUniversity Code, which provides:

Art. 250. No member of the academic staff, officer or employee ofthe University shall, without permission from the President or theChancellor, as the case may be, practice any profession or manage

personally any private enterprise which in any way may be affected by thefunctions of his office, nor shall he be directly financially interested in anycontract with the University unless permitted by the Board. Violation ofthis provision shall be punishable by reprimand, suspension, or dismissalfrom the service. (Emphasis supplied.)

Since Dr. Posadas and Dr. Dayco entered into the contract forconsultancy services for the TMC Project without prior permission from theUniversity President, the Sandiganbayan ruled that they violated Section7(b) of R.A. No. 6713.

Petitioners contend that the section of the University Code cited bythe Sandiganbayan had already been superseded by the guidelines on outsideactivities promulgated by the BOR at its 1031 st Meeting on June 28, 1990.Thus, in the Faculty Manual of the University of the Philippines Diliman while the consultancy at TMC Project falls under the coverage of “outsideactivities,” prior authorization by the University President is no longerrequired. The pertinent provisions of the manual read:

10.3 Guidelines on Outside Activities [1031 st BOR meeting, June 28,

1990]

10.3.1 Coverage

Outside activities of University personnel shall include:limited practice of profession, management of private enterprises,outside consultancy, secondment, teaching in other educational ortraining institutions with which the University has a Memorandumof Agreement, as well as research and other activities or projectsunder the auspices of outside agencies which are not consideredintegral functions of the University. Such activities shall not be

considered part of the regular workload of the personnelconcerned.

10.3.2 Prior Authorization

No member of the University personnel shall engage inoutside activities without prior authorization from the

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Decision 23 G.R. Nos. 168951 & 169000

Chancellor , upon endorsement by the Dean, Director, or head ofoffice concerned, subject to the exigencies of the service.

x x x x

10.3.5 Penalties

Violation of any of the rules on outside activities shall beground for disciplinary action. The immediate superior of thefaculty/staff member shall immediately submit a report on anyviolation of the rules to the Office of the Chancellor, throughchannels.

Disciplinary action on any faculty/staff member may beimposed, but only in accordance with the law, and after due

process.

10.3.6 Types

x x x x

c. Limited/private practice of profession

Permission to engage in private practice of the profession offaculty members may be granted only if such private practice mayenhance their usefulness to the University or improve theirefficiency. [Art. 252]

The privilege of private practice, when granted, shall be fora definite period of one (1) year, renewable at the discretion of the

Chancellor for one-year periods, and under such conditions as may be prescribed by him/her regarding the nature of the work, the timeof performance, and other circumstances. [Art. 253; amended at

BOR meetings: 839 th , Nov. 29, 1973; 1031 st , June 28, 1990]

The limited practice of one’s profession shall be governed by the following guidelines:

1) No member of the academic staff, officer or employeeof the University shall, without prior permission fromthe Chancellor, practice any profession or manage

personally any private enterprise which in any way may be affected by the functions of her/his office; nor shalls/he be directly financially interested in any contractwith the University unless permitted by the Board.Violation of this provision shall be punishable byreprimand, suspension, or dismissal from the service .[Art. 250; amended at 1031 st BOR meeting, June 28,1990]

2) Permission to engage in private practice of professionmay granted provided that such practice: is NOT ADVERSE to the interests of the

University; shall NOT be conducted on official time; will improve the person’s efficiency and usefulness

to the University; and shall be subject to such other requirements as may

be imposed by law or University rules andregulations. (Emphasis supplied.)

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Decision 24 G.R. Nos. 168951 & 169000

Notwithstanding the supposed amendment of the rule on limited practice of profession as contained in Article 250 of the University Code, wesustain the Sandiganbayan in holding that petitioners should have obtained

prior permission from the University President for the contract forconsultancy services in the TMC Project. As with our conclusion on theissue of authority to appoint the TMC Project Director, considering that it isthe Chancellor himself who was engaged as TMC Project Consultant, thecontract for consultancy services of Dr. Posadas should have beenauthorized by the University President as the chief executive officer of theUP System. To hold otherwise is to leave the matter of determining thecriteria or conditions for allowing the private practice of profession providedin the University rules entirely to Dr. Posadas himself as then UP DilimanChancellor. Consistent with the Civil Service rules that prior authorization

by the head of the agency or institution must be sought by the government

officer or employee who desires to accept a consultancy job, it is no lessthan the University President who should have given permission to Dr.Posadas, the latter being directly under his administrative supervision.

Upon the established facts and applicable law and jurisprudence, wehold that no grave abuse of discretion was committed by the Sandiganbayanin convicting petitioners for violation of Section 7(b) of R.A. No. 6713.

Conspiracy

A conspiracy is proved by evidence of actual cooperation; of actsindicative of an agreement, a common purpose or design, a concerted actionor concurrence of sentiments to commit the felony and actually pursue it. 55Forthe accused to be held as conspirators, it is not necessary to show that two ormore persons met together and entered into an explicit agreement setting outthe details of an unlawful scheme or the details by which an illegal objectiveis to be carried out.” Therefore, if it is proved that two or more persons aimed

by their acts towards the accomplishment of the same unlawful object, eachdoing a part so that their acts, though apparently independent, were in factconnected and cooperative, indicating a closeness of personal association anda concurrence of sentiment, then a conspiracy may be inferred though noactual meeting among them to concert means is proved. 56

The Sandiganbayan’s finding of conspiracy rests on firm factualsupport. Although Dr. Dayco tried to downplay his participation, statingthathe did not benefit from the subject appointments and that there were manyother appointment papers he had signed in the absence of Dr. Posadas,it is

clear as daylight that he had a principal and indispensable role in effectingthe said appointments. To stress the point, the Sandiganbayan quoted therelevant portions of the Report submitted by the ADT, as follows:

55 Lazarte, Jr. v. Sandiganbayan (First Division), G.R. No. 180122, March 13, 2009, 581 SCRA 431, 450.56 Guy v. People, G.R. Nos. 166794-96, 166880-82 & 167088-90, March 20, 2009, 582 SCRA 107, 125,

citing People v. Quinao, et al., 336 Phil. 475, 488-489 (1997) and People v. Layno, 332 Phil. 612, 629(1996).

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Decision 25 G.R. Nos. 168951 & 169000

It would be the height of naiveté to assume that before making thetwo (2) appointments of respondent Posadas as Director of the TMCProject and as Consultant to the TMC, respondent Dayco did not, in anymanner, confer with respondent Posadas about the matter. To believe theclaim of respondent Posadas that he just saw his appointment papers at his

desk when he came back from his trip is to tax human credulity too much.Under the said circumstances, the natural course of events

necessarily points to connivance between respondent Posadas andrespondent Dayco in the making of the questioned appointments.

Despite the claim of respondent Posadas that he just saw theappointment papers on his desk when he returned from his trip, theadmitted fact is that respondent Dayco made those appointments forrespondent Posadas and the latter acted upon the same favourably as he(respondent Posadas) collected the compensation therein (Exhibits :E” and“E-1”). In fact, as Chancellor, respondent Posadas approved his own

Disbursement Voucher for payment from the coffers of the University,covering his honoraria and consultancy fees as Project Director for theTMC Project and as consultant to the TMC, respectively (Exhibit “E-2”). 57

Penalty

Any person guilty of violating Section 3(e) of R.A. No. 3019 is punishable with imprisonment for not less than six (6) years and one (1)month nor more than fifteen (15) years and perpetual disqualification from

public office. 58Thus, the penalty imposed by the Sandiganbayan which is anindeterminate penalty of nine (9) years and one day as minimum and twelve(12) years as maximum, with the accessory penalty of perpetualdisqualification from public office, is in accord with law. Petitioners shallalso indemnify the Government of the Republic of the Philippines theamount of THREE HUNDRED THIRTY SIX THOUSAND PESOS(P336,000.00) representing the compensation/salaries paid to Dr. Posadas asTMC Project Director.

As to the offense defined in Section 7(b) of R.A. No. 6713, Section 11of said law provides that violations of Section 7 shall be punishable withimprisonment not exceeding five (5) years, or a fine not exceeding fivethousand pesos (P5,000), or both, and, in the discretion of the court,disqualification to hold public office. The Sandiganbayan imposed themaximum penalty of five (5) years imprisonment and disqualification tohold public office.

The Court is aware of the sentiments of the succeeding BOR whoagonized while deliberating whether to readmit petitioners into the faculty of

UP Diliman, with majority of the Regents lamenting the loss of two of itsdistinguished intellectuals and scientists who had served the University forso long despite the meager compensation UP has to offer compared to

57 ADT Report in re: ADT Case No. 96-001, p. 15, Exhibit “A-6,” folder of exhibits (Prosecution).58 Sec. 9, R.A. No. 3019; Sison v. People, G.R. Nos. 170339, 170398-403, March 9, 2010, 614 SCRA

670, 682.

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Decision 26 G.R. Nos. 168951 169000

private educational institutions. 59 The BOR eventually allowed them toteach part-time in the TMC even waiving the conditions the previous BORhad imposed -- a move perceived to be a first step in the healing process forthe academic community that was torn into pieces by the issue.

However, this Court's mandate is to uphold the Constitution and thelaws. Our Constitution stresses that a public office is a public trust andpublic officers must at all times be accountable to the people, serve themwith utmost responsibility, integrity, loyalty, and efficiency, act withpatriotism and justice, and lead modest lives. 60 These constitutionallyenshrined principles, oft-repeated in our case law, are not mere rhetoricalflourishes or idealistic sentiments. They should be taken as workingstandards by all in the public service. 6

WHEREFORE the petition is DISMISSED. The Decision datedJune 28, 2005 of the Sandiganbayan in Criminal Cases Nos. 25465-66 ishereby AFFIRMED and UPHELD.

With costs against the petitioners.

SO ORDERED.

W CONCUR:

~ ~ : : : : - 1 - L - ~ ~ L - - - - - : ~Associate

BIENVENIDO L REYESAssociate Justice

ENDOZA

59 Transcription on the case o f Dr. Roger Posadas, 1150 1h BOR meeting, May 24, 200 I, Exhibit 53,folder of exhibits (Defense)

60 Duque ll v Veloso G.R. No. 196201, June 19, 2012, 673 SCRA 676, 687, citing Japson v CivilService Commission G.R. No. 189479, April 12 2011 648 SCRA 532 545.

6 ld.

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Decision 7 G.R. Nos. 168951 169000

T T E S T T I O N

I attest that the conclusions in the above Decision had been reached inconsultation before the case was assigned to the writer of the opinion o f theCourt s Division.

C E R T I F I C T I O N

Pursuant to Section 13, Article VIII o f the 1987 Constitutim1 and theDivision Acting Chairperson s Attestation, I cer1ify that the conclusions inthe above Decision had been reached in consultation before the case wasassigned to the writer o f the opinion o f the Court s Division.

MARIA LOUR ES P A SEHENOhief Justice