DILG OPINION NO. 12 S.

1999

28 January 1999

MR. MARVIN M. NOSCAL

Sangguniang Bayan Member
Lopez, Quezon
Re:

(1)
Whether the actions/measures taken up and
approved by the Municipal Development Council, its
Executive Committee and the PBAC, are valid if its
composition are not in conformity with the mandate of
the Local Government Code.
(2)
May a municipal employee be allowed to be
a representative of an NGO in local special bodies.
(3)
Whether Article 63 (b) and Article 183 (1) (4)
of the IRR of RA 7160 providing that NGOs in PBAC
must come from those NGOs represented in Local
Development Councils are not in conflict with Article 64
(d) of the same IRR which prohibits an organization or a
representative thereof to be a member of more than one
special body.

Dear Sir:
In reply to your above-captioned first query, please be informed
that the acts or measures taken up by the PBAC or the Municipal
Development Council and its Executive Committee can still be given
legal force and effect for having been made by de facto officers. A de
facto officer is one who has the reputation of being the officer he
assumed to be and yet is not a good officer in point of law (The Law on
Public Officers, de Leon and de Leon, Jr., 1997, p. 107). For reason of
public policy and in order to protect public interest, acts of de facto
officers should be sustained as valid. This is, of course, without
prejudice to the possible administrative and criminal sanctions that
may be imposed against those responsible for the irregularity.

-2In reply to your second-captioned query, please be informed that

there is no law that prohibits a municipal employee to be a
representative of an NGO as long as said municipal employee is a
member thereof. The prohibitions under Section 7, Article IX-B of the
Constitution, and Section 94 of the Local Government Code do not
apply since they pertain to the appointment of an appointive employee
in any capacity to another public office. A public office has been
defined as the right, authority, and duty created and conferred by law,
by which for a given period, either fixed by law or enduring at the
pleasure of the appointing power, an individual is invested with some
portion of the sovereign functions of the government, to be exercised
by him for the benefit of the public (The Law on Public Officers, de Leon
and de Leon, Jr., 1997, p. 1). Consequently, representation in an NGO
cannot come within its coverage.
In reply to your above-captioned third query, please be informed
that there is actually no conflict because while Article 64 (d) provides
for the general rule, Articles 63 (b) and 183 (1) (4) provides for the
exception insofar as local PBAC is concerned.
Hope to have enlightened you on the matter.
Very truly yours,

JESUS I. INGENIERO
Assistant Secretary
LS:33/Merle/La
copy furnished:
The MLGOO
DILG Municipal Field Office
Lopez, Quezon
The Regional Director
DILG Regional Office No. IV

Calderon Bldg., EDSA

Diliman, Quezon City