Espina after Cuenco: replacing councilors

DILG policy is to implement the ombudsman order until the appellate court reverses it. But can the president replace the dismissed councilor when the vacancy is not yet permanent?

Cebu City Councilor Margot Osmeña has asked if Erik Miguel Espina was appointed lawfully to the councilor’s seat vacated by the dismissal of Councilor James Anthony Cuenco. Espina was sworn in yesterday ( July 9) before a Court of Appeals-Cebu Station justice.

Councilor Margot, who belongs to the ruling party BOPK, wondered why, since Cuenco had filed a “motion for reconsideration.” His case is not yet over or, in legal jargon, “final and executory.”

2014 complaint

Cuenco was ordered dismissed by the ombudsman for “serious dishonesty and grave misconduct.” Department of Interior and Local Government (DILG) served the order last Oct. 2, 2017. The young Cuenco and one Manuel Tigpos, a staffer in the Cebu office of then congressman Antonio Cuenco, James’s dad, were found guilty in the 2004 spending of P3.3 million pork barrel money purportedly for medicines of selected beneficiaries. The complaint against them was filed in 2014 after COA found that the listed beneficiaries were non-existent.

Cuenco packed up and left the City Council but he filed with the Court of Appeals on Oct. 5, 2017 a petition for review on certiorari with prayer for a TRO. The TRO has not come and his case is stuck in court.

Permanent vacancy

Is the vacancy deemed permanent? The Local Government Code rule on succession refers to “permanent vacancy,” including failure to assume office or to qualify, death, resignation, removal from office, or otherwise incapacitated to perform his functions.

Cuenco’s exit is apparently not permanent as the ombudsman is not yet final. Although no TRO has been issued and Cuenco in fact is already removed from office, can he be replaced in the meantime when the law on succession specifies “permanent vacancy”? Meaning, no chance of being here or coming back.

Death certificate

The president, through his executive secretary, last July 5 appointed Espina, son of former governor and senator Rene Espina. The law requires as essential conditions (a) a certificate of nomination from UNA, the party under which Cuenco ran and won, and (b) a certificate of membership in the said party.

Did the Palace ask for certification of permanent vacancy? Before Jennify Tan-Dungog was appointed in September 2017 to the Lapu-Lapu City Council seat vacated by the death of councilor Damian Gomez, the executive secretary required Gomez’s death certificate. Malacañang wanted to be sure that Gomez was dead.

DILG policy

If it wanted to know whether a permanent vacancy existed, the president’s office must have relied on the ombudsman dismissal order plus the word of DILG that Cuenco had been evicted. To our best knowledge, the City Council hadn’t certified to a vacancy.

DILG seems not to care if the dismissed person goes to appellate court, or the ombudsman order is not yet final. “If he gets the TRO, he can come back. We at DILG only implement the court order,” explained an official in the Feb. 10, 2017 ouster of Puerto Princesa mayor Lucilo Bayon.

DILG must think of a temporary situation while the Palace responded to a permanent state.

Barug’s edge

It pays of course to have the appointing authority support the local initiative, which in Cuenco’s case, and in the earlier resignation of Councilor Hanz Abella, came from Barug-PDP Laban.

With Espina added to the BOPK column, the figures return to 9-9, with Vice Mayor Edgar Labella of Barug breaking the tie vote. The balance may be short-lived though. Once the city ABC picks this week a BOPK president who’ll replace Councilor Philip Zafra of Barug-PDP Laban, it will be plus one for BOPK and minus one for Barug or 10-8 in BOPKs favor.

The law is often how the appointing power decides to implement it. But other factors often come into play.