ERC commissioners ask Malacañang to order Salazar’s removal from office
THE FOUR commissioners of the Energy Regulatory Commission (ERC) have asked Malacañang to make permanent the suspension of their chairman and to order his removal from office on an enumeration of grounds, including allegations that he had committed graft.
“Wherefore, it is respectfully prayed of the Honorable Office that the Comment filed by ERC Chairman and CEO Jose Vicente B. Salazar be set aside for lack of factual and legal basis, and that Salazar’s preventive suspension be made permanent and his removal from office be ordered,” the commissioners said in their reply to his comment on the administrative case against him.
Mr. Salazar was ordered suspended by the Office of the President in an order dated May 2, and received by the ERC on May 4. He was also told to respond and submit a written comment or explanation on administrative charges within 10 days of receipt of the order. He submitted his comment on May 14.
The commissioners’ call for his removal was part of their reply to Mr. Salazar’s submission. The reply, which was distributed to reporters on Wednesday, was dated July 3 and signed by Alfredo J. Non, Gloria Victoria C. Yap-Taruc, Josefina Patricia A. Magpale-Asirit and Geronimo D. Sta. Ana.
The four questioned Mr. Salazar’s explanation, which includes the following:
— The ERC is a purely independent regulatory body, and its chairman and commissioners are beyond the scope of the Office of the President’s (OP) disciplinary action.
— Assuming that the OP has jurisdiction over the case, Mr. Salazar was not afforded his constitutional right to due process of law.
— He has complied with the office’s order designating Mr. Sta. Ana as ERC officer- in- charge (OIC). He has designated an executive director merely and solely as signing authority and not as an OIC.
— The appointment and designation of ERC officials and personnel are within the sole authority of the ERC chairman and CEO. The concurrence of the commission en banc is not required.
— There was no violation either of Republic Act (RA) No. 9136 ( Electric Power Industry Reform Act of 2001, or EPIRA) or RA No. 3019 (Anti- Graft and Corrupt Practices Act) in the issuance of orders pertaining to the extension of the term of FDC Misamis Power Corp.’s contracts with electric cooperatives.
— There was no violation of RA No. 9184 (Government Procurement Reform Act) and other laws, including RA No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees), RA No. 10717 (General Appropriations Act) and Executive Order No. 292 ( Administrative Code).
The four commissioners said the assertions made by Mr. Salazar are flawed. They said the independence of the ERC under EPIRA only pertains to its regulatory functions, which includes its mandate as a quasi-judicial and quasi-legislative body.
“The independence was never conceived to insulate members from the disciplining authority of the President. What the law provided was that members of the Commission shall enjoy security of tenure and shall not be suspended or removed from office except for cause as specified by law,” the four said.
The commissioners also cited other laws to bolster their claim, including precedent cases.
On Mr. Salazar’s claim that he was not given due process, they said the OP had conducted a formal investigation into the charges as stated in the suspension order.
“The Office of the Executive Secretary is duly empowered to issue preventive suspension orders in specific circumstances. There was a finding of the existence of a prima facie case against Respondent Salazar and that the charges are punishable with removal from the service,” they said.
“Morever, it should be noted that a preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the penalty,” the commissioners said.
The four said Mr. Salazar committed grave misconduct and gross insubordination, citing records that a known staff in his office received Malacañang’s designation of Mr. Sta. Ana as OIC ahead of the chairman’s trip but failed to inform the commissioners, including Mr. Sta. Ana.
“Apparently, Respondent Salazar issued another Office Order sometime in April 2017 prior to his departure ... designating Atty. Rolando G. Gomez as signing authority for all transactions pertaining to the office of the Chairperson in complete disregard (of ) the approved designation of Commissioner Sta. Ana as the OIC during his absence,” they said.
“Clearly these acts constitute grave misconduct and gross insubordination when he defied the designation by the Office of the President, the very office that appointed him, by naming another OIC, knowing fully well that the Office of the President had designated another ERC official as OIC,” they added.
The commissioners said no other law or jurisprudence supports Mr. Salazar’s contention that as CEO he is the sole and exclusive authority to appoint ERC employees. They said the law intended ERC to be “unique and distinct” from other government agencies.
They said under EPIRA, the functions of the ERC CEO were not enumerated, unlike that of another agency created by law — the Power Sector Assets and Liabilities Management Corp. — where the functions of the CEO were expressly provided, among which is the power to appoint subject to the policies and guidelines set by its board.
“Both officers are appointed by the President,” they said.
They also said that Mr. Salazar is guilty of unlawful appointments when he “arrogated upon himself the sole authority to appoint ERC personnel.” They said that between the last quarter of 2015 to the first semester of 2016, two chiefs of a division retired one after the other for unknown reasons. He then designated his head executive assistant and first cousin as OIC of the division, they claim.
“This is a clear violation of Section 15, Rule 13 of the Civil Service Commission Omnibus Implementing Rules and Regulations.”
They also said Mr. Salazar continued to appoint ERC officials and employees on his own after the approval of the agency’s new organization structure and additional plantilla positions. They then cited an internal inquiry after the death of a director, who was said to have committed suicide, “did not sit well” with him and “immediately confronted the Commissioners and demanded that they stop the said inquiry.”
The four also cited FDC Misamis, a case in which they said Mr. Salazar usurped the authority of the commission in unilaterally extending the term of the company’s contracts with electric cooperatives. They cited Section 38 of EPIRA, which provides at least three members of the commission to constitute a quorum and a majority vote of two members in a meeting for the adoption of any rule, ruling, order, resolution, decision or other acts by the ERC in the exercise of its quasi-judicial functions.
The commissioners also accused Mr. Salazar of bid rigging, procurement without proper bidding and splitting of contracts, among others, under RA 9184. The case is in relation to an audio-visual presentation project (AVP), which the commissioners cited a report by the Commission on Audit enumerating numerous violations.
They further accused Mr. Salazar of perjury, gross dishonesty with respect to some contracts and unlawfully threatening the commissioners, in their 42-page reply submitted to the Office of the President.