LEGAL OPINION RE DISBURSEMENT OF BURIAL ASSISTANCE THRU CASH ADVANCE

Republic of the Philippines
Province of South Cotabato
City of Koronadal
OFFICE OF THE CITY LEGAL OFFICER
Telephone No. (083) 228-1742
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LEGAL OPINION NO. _________

DATE : 13 March 2012

TO : HON. PETER B. MIGUEL, MD, FPSO-HNS
City Mayor

MS. IMELDA A. TAMAYO, CPA
City Accountant
This City

RE : Disbursement Of Burial Assistance Through Cash Advance
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Kanami Koronadal!


This has reference to your query on whether or not burial assistance may be disbursed through cash advance. The undersigned is of the opinion that applicable laws, rules and regulations allow the same.


Pursuant to Section 339 of the Local Government Code of 1991, the Commission On Audit (COA) has prescribed rules and regulations pertaining to cash advances made by a local official or employee, through certain issuances, among which is the Commission on Audit Circular No. 97-002 dated 10 February 1997, reinstating and amending COA Circular No. 90-331 dated 3 May 1990, the pertinent portion of which is provided hereunder, to wit:


x x x

“2. GENERAL PRINCIPLES

Ideally, cash should be handled under the general principles of the imprest system, to wit:

1. Daily receipts on collections must be deposited intact with the proper bank.
2. All payments must be made by check.
3. Only payments in small amounts may be made through the petty cash fund. Replenishment of the petty cash fund shall be equal to the total amount of expenditures made there from.

In practice, however, there are certain instances when it may be very difficult, impractical or impossible to make payments by check. In such a case, payments may be made by the disbursing officer in the form of cash through his cash advance. (Emphasis supplied)

3. DEFINITIONS AND SCOPE

Cash Advance shall be of two types, namely, the regular cash advances, and the special cash advances.

3.1. Regular cash advances are those granted to cashiers, disbursing officers, paymasters, and/or property/supply officers for any of the following purposes:

3.1.1. Salaries and Wages
3.1.2. Commutable allowances
3.1.3. Honoraria and other similar payments to officials and employees
3.1.4. Petty operating expenses consisting of small payments for maintenance and operating expenses which cannot be paid conveniently by check or are required to be paid immediately.

3.2. Special cash advances are those granted on the explicit authority of the Head of the Agency only to duly designated disbursing officers or employees for other legally authorized purposes, as follows:

3.2.1. Current operating expenditures of the agency field office or of the activity of the agency undertaken in the field when it is impractical to pay the same by check, such as –

- Salaries, Wages and Allowances
- Maintenance and other operating expenses

3.2.2 Travel expenditures, including transportation fare, travel allowance, hotel room/lodging expenses and other expenses incurred by officials and employees in connection with official travel….
x x x


The same was stipulated in toto under COA Circular No. 368-91, Volume I, Chapter 2, Sections 172-173. The said circular, along with the other aforementioned COA Circulars, clearly allow the maintenance and other operating expense to be disbursed through cash advance. Also, the NGAS Manual for Local Government Units provides, thus:


x x x

Sec. 48. Payments out of the Petty Cash Fund. – Petty cash fund shall be maintained under the imprest system. The fund shall be sufficient for the non-recurring, emergency and petty expenses of the LGU for one month. Disbursements from the fund shall be through the Petty Cash Voucher (PCV) which shall be signed by the payee to acknowledge the amount received. The official receipt shall be attached to the PCV.
x x x

While the NGAS Manual for Local Government Units does not spell out the non-recurring, emergency and petty expenses covered thereby, reference can be made to the previous issuances of the COA.
The issue that needs to be resolved therefore is whether or not burial assistance can be considered as maintenance and other operating expense.

In a complex agency such as a Local Government Unit, particularly a City, burial expenses as assistance to its constituents, is a regular expense which falls within the scope of maintenance and operating expense under the Office of the City Mayor. The fact that it falls under the category of MOOE leaves no doubt as to its classification.
As a matter of fact, it has become regular as an expense considering that giving a dignified burial to its constituents is an inherent duty of the government under the general welfare clause and is undeniably part of the regular operations of the Office of the City Mayor. Therefore, burial expense is allowed by law and other applicable rules and regulations to be disbursed through cash advance.

The guidelines established by the COA are designed to prevent abuses and excesses in the disbursement of government money. They were not meant to suppress the need to expedite the delivery of the basic services to the populace, not to mention the underprivileged sector of our society. Laws and rules must be construed not by the letter that killeth, but by the spirit that giveth life.

The reason advanced for the innovation sought to be implemented, that is, to make the services readily accessible to the beneficiaries and to remove the undue and unnecessary burden to the recipients already in grief due to the loss of a loved one, is tenable as long as the safeguards are properly installed and observed to insure that the release of burial assistance does not become whimsical and capricious. Hence, there must still be a policy on qualification and standard operating procedure duly established to determine the qualified beneficiaries by the duly authorized LGU officer, i.e., a Government Social Worker. The same must form part of the supporting documents for the release of the cash assistance and for audit purposes.

I hope we have fully addressed your query.


Yours truly,



EUFEMIO A. SIMTIM, JR.
City Legal Officer

LEGAL OPINION RE ENTITLEMENT TO UNIFORM/CLOTHING ALLOWANCE

LEGAL OPINION NO. ________


DATE : 6 JUNE 2011

TO : JULIETA R. GASTALA
City Budget Officer
City of Koronadal

RE : UNIFORM/CLOTHING ALLOWANCE CLAIM

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Elric M. Batilaran, employee of the Koronadal Investment Center, who is currently in Japan on a scholarship program sponsored by NEDA, in a letter dated 24 May 2011, requests that the clothing allowance for the year 2011 be granted to him. He represents, as follows:
x x x

“The main meat of this letter is about my disallowance to receive a clothing allowance this year amounting to Four Thousand Pesos (Php 4,000) despite my inquiry and intentions to avail for it. I had received a Budget Circular Number 2003-8 dated 8 December 2003 on Rules and Regulations on the Grant of Uniform/Clothing Allowance to all Government Personnel for FY 2004 and years thereafter” signed Secretary Emilia T. Bancodin as the basis of our LGU’s Budget Office for not granting me the said benefit. When I was reviewing the content of the said Budget Circular, I cannot find any legitimate rationalization in there that would disallow me to receive the said benefit as I am a government employee who is on leave with pay.”

x x x

The bone of his contention is that the denial of the said uniform/clothing allowance by the City Budget Office was due to its erroneous reliance on Item No. 2 of the said circular which provides that:

x x x

“2.0 COVERAGE AND EXEMPTIONS

This Circular shall apply to all government personnel, whether appointive or elective on full-time or part-time basis, under permanent, temporary or casual status, and contractual personnel whose employment is in the nature of a regular employee.

It shall not apply, however, to the following:

x x x

2.3 Government personnel who are on leave without pay or on training/study/scholarship grant and other similar activities for more than six (6) consecutive months in a particular year.” [Emphasis added]

x x x


Mr. Batilaran posits that his scholarship in Japan is considered as on leave with pay; hence, the said provision should not be applied to him, presumably taking into consideration the provision found in Item No. 3.2 which states that “[g]overnment personnel who are expected to render at least six (6) consecutive months in a particular year including leaves of absence with pay shall be entitled to U/CA.”

The issue that needs to be resolved via the instant Legal Opinion therefore is: Whether or not Mr. Elric Batilaran, a city government employee who is presently on scholarship grant and on official leave with pay, is entitled to receive uniform/clothing allowance.

The undersigned answers in the AFFIRMATIVE.

It is important to stress that DBM Local Budget Circular No. 2003-8 has already been amended by DBM Local Budget Circular No. 2003-8-A-04, issued on 2 July 2004. Said amendment provides that:

x x x

1.0 Purpose

This Circular is issued to amend Sub-item 2.3 of Budget Circular (BC) No. 2003-8 dated December 8, 2003 by excluding government employees on training/study/scholarship grant and other similar activities from the list of those not covered by the BC.

It shall not apply, however, to the following:

xxx xxx xxx

2.3 Government personnel who are on leave without pay for more than six (6) consecutive months in a particular year.” [Emphasis added]

x x x


Said amendment has effectively removed all doubts besetting the entitlement of Mr. Elric Batilaran to U/CA. Attached herewith for easy reference is the machine copy of DBM Budget Circular No. 2003-8-A-04.



RESPECTFULLY SUBMITTED:





EUFEMIO A. SIMTIM, JR.
City Legal Officer


- and -




MYRA JOY H. LAWI-AN, LLB
Legal Assistant II

ADDENDUM TO LEGAL OPINION NO. 5-12-2011

ADDENDUM

[Legal Opinion Re Proposed Mini-Hydropower Plant Project]


The primordial issue that needs to be resolved via the instant addendum is –
Whether or not a barangay resolution from the Sangguniang Barangay of Brgy. Carpenter Hill is a pre-requisite before the Sangguniang Panlungsod of the City of Koronadal could grant legislative authority to the City Mayor to enter into a Memorandum of Agreement (MOA) with a private entity relative to the rehabilitation of the mini-hydro power plant situated in the said barangay.

The undersigned answers in the NEGATIVE.

Nowhere is it found in the Local Government Code of 1991 (LGC ’91) that a favorable resolution from the Sangguniang Barangay must first be secured before the Sangguniang Panlungsod could grant the City Mayor the legislative authority to enter into a Memorandum of Agreement (MOA) in behalf of the city government. Otherwise, it would place the operation of the city government under the discretion, or worse, at the mercy of its own component unit.

The requirement of prior legislative authority is found in Section 22 of the LGC ’91 which provides, thus:

x x x

“(c) Unless otherwise provided in this Code, no contract may be entered into by the local chief executive in behalf of the local government unit without prior authorization by the sanggunian concerned. A legible copy of such contract shall be posted at a conspicuous place in the provincial capitol or the city, municipal or barangay hall.”

x x x

Clearly, nothing therein suggests or implies any prior referral to the barangay council for the passage of a barangay resolution.
In relation to the rehabilitation of the hydro-power plant, the LGC ’91 likewise provides, to wit:

Section 17. Basic Services and Facilities. -

(a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government units shall likewise exercise such other powers and discharge such other functions and responsibilities as are necessary, appropriate, or incidental to efficient and effective provisions of the basic services and facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, the following:

x x x

(3) For a Province:
(iii) Pursuant to national policies and subject to supervision, control and review of the DENR, enforcement of forestry laws limited to community-based forestry projects, pollution control law, small-scale mining law, and other laws on the protection of the environment; and mini-hydroelectric projects for local purposes;

x x x

(4) For a City:

All the services and facilities of the municipality and province xxx.

x x x

While the LGC ’91 requires prior consultation with respect to the implementation of any project or program, said requirement is specifically obtaining among national agencies and offices only vis-à-vis the LGUs, thus:

Section 2. Declaration of Policy. -

x x x

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units, nongovernmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions.

x x x

CHAPTER III

Intergovernmental Relations

ARTICLE I

National Government and Local Government Units

x x x

Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the duty of every national agency or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.

Section 27. Prior Consultations Required. - No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.

x x x

To be certain, the prior public consultation, specifically with the barangay unit concerned, is a requirement found, not under the LGC ’91, but under the Environmental Impact Assessment process pursuant to the REVISED PROCEDURAL MANUAL FOR DENR ADMINISTRATIVE ORDER NO. 30 SERIES OF 2003 (DAO 03-30) (Implementing Rules and Regulations of Presidential Decree No. 1586, Establishing the Philippine Environmental Impact Statement System), which provides, to wit:

x x x

“11) Public Participation in the EIA Process

Public participation shall be demonstrated through the following activities:

a) As part of the social preparation process at pre-Scoping, Information, Education and Communication (IEC) of LGUs is now explicitly required at the minimum of PEIS/EIS based applications for new or modification proposals for which Public Scoping is a requirement. The IEC serves as a basis for preliminary identification of stakeholders and related issues in preparation for the Scoping proper. The revised Manual presents proforma documents and supplementing guidelines for proper and timely identification of stakeholders to be invited for Scoping and to be covered by the EIA Study.

b) Public Scoping for PEIS/EIS-based new projects is now more meaningful as community inputs will precede the Technical Scoping of the EIA Review Team with the Proponent, and will be formally considered before the sign-off of the Scoping Checklist that comprises the final TOR of the EIA Study. Key stakeholder representatives, EMB personnel, EIA Review Committee and the Proponent/Preparer representatives also sign off the List of Issues raised during the Public Scoping.

c) The conduct of the EIA Study shall include local stakeholders, who may serve as local expert sources, aides/guides and resource persons in primary data collection to optimize access to indigenous knowledge of the environment, or as interviewers/ interviewees in the socio-economic/perception surveys which shall be used as the basis for the subsequent formulation of social development plans, IEC, monitoring plans and other components of the environmental management plans. LGUs and government agencies shall specifically be consulted and involved in the drafting of the project’s Social Development Plan (SDP) Framework. The EIA Scoping and EIA Report Outline/Content allocate specific sections for a presentation and discussion of Public Participation process and outcomes, to be subject to the review of the EIA Review Committee and evaluation of the EMB during the Site Visit done simultaneously with either Public Hearing or Public Consultation, where applicable.

d) As a form of disclosure of the EIA findings, Public Hearing is required for all new ECPs for which Public Scoping was undertaken and for PEIS-based applications. A waiver of the Public Hearing requested by the Proponent may be granted by the DENR-EMB subject to the absence of mounting opposition or written request for one with valid basis and Public Consultation may be conducted instead of Public Hearing. The Notice of Public Hearing provides explicit instructions on registration, access to the EIA Report (with Project Fact Sheet written in the local dialect or mixed with the popularly known language of the host communities), preparation of position papers, and on the mechanics of how issues may be received before or during the hearing. Prior to Public Hearings or Public Consultations, the Proponent is required to give copies of the full EIA Report to the EMB RO and host municipalities; copies of Executive Summary to the host barangays; and copies of Project Fact Sheets to other stakeholders for a well-informed participation in the hearing/consultation process.

e) Once an ECC/CNC is issued, the EIA recommendations are transmitted by the DENREMB to the concerned GAs and LGUs to be considered in their decision-making process. This results to a more integrated, coordinated and participative safeguarding of environmental concerns.

f) Post-ECC multi-sectoral validation of a Proponent’s self-monitoring results is instituted for PEIS/EIS-based projects. On the side of the EMB, through its Project Environmental Monitoring and Audit Prioritization Scheme (PEMAPS), a mechanism is provided for determination of EMB monitoring strategy and EMB monitoring priority rank a project will be assigned to, which provides guidance to the public on the applicable monitoring schemes for the project.”

x x x

However, the EIA Process has nothing to do with the requirement of legislative authority under consideration as such requirement is prescribed in an application for Environmental Compliance Certificate (ECC), which properly falls within the province of the DENR.

The execution of the proposed MOA is simply an initiatory act before the whole process shall take place, to include the conduct of a feasibility study by the proponent, with the consent of the National Irrigation Administration (NIA) which owns the project. It is during the feasibility study (FS) stage when a proponent defines its range of actions and considers project alternatives. The MOA will simply serve as the basis for securing the consent of NIA in leasing its aforesaid property for purposes of rehabilitation to be jointly undertaken by the proponent and the LGU. Indeed, the proposed MOA provides that the LGU shall “assist in facilitating necessary and related permits and licenses which are required by national and/or local law for the rehabilitation and later operation of the HEP system” and shall “take the lead in the peaceful and diplomatic resolution of issues with landowners within the HEP system and/or other interested parties.”

Respectfully submitted:



EUFEMIO A. SIMTIM, JR.
City Legal Officer