DILG OPINION NO. 57 S.

1999

April 13, 1999

ATTY. MA. CECILIA I. AUSTRIA-CHUA

Assistant Provincial Legal Officer
Provincial Capitol, Batangas City
Re:
(1)
Does the appointment of a Provincial Legal
Officer require concurrence of the Sangguniang Panlalawigan
although the position is co-terminous and a primarily confidential one?;
(2)
If so, is the act of the members of the Sangguniang
Panlalawigan in withholding concurrence of the said appointment
without any valid reason proper?;
(3)
Will mandamus lie against
Panlalawigan under the given circumstance?;

the

Sangguniang

(4)
Can an acting Provincial Legal Officer represent cases
involving the province?
Dear Atty. Chua:
In reply to your first-captioned query, please be informed that
appointments of heads of offices and departments in the provincial
government require the concurrence of the majority of all the Members
of the Sangguniang Panlalawigan, subject to Civil Service Law, Rules
and Regulations (Section 463 [d], Local Government Code of 1991 (RA
7160). Accordingly, your appointment as Provincial Legal Officer, which
is that of a Department Head, needs the concurrence of the majority of
all the Sangguniang Panlalawigan Members. Hence, even if the
position of a provincial legal officer is primarily confidential in nature
(Hilario vs. CSC G.R. No. 116041, March 31, 1995 citing Grio vs. CSC, 194
SCRA 458,467), the appointment may be complete only when, in case

where assent or confirmation of some other offices or body is required,

such assent or confirmation is obtained ( Luego vs. CSC G.R. No. L-69137,
August 5, 1986; Atty. David Corpuz vs. CA, et. al., G.R. No. 123989, January
26, 1998).

In reply to your second and third captioned queries, please be

informed that the appointing authority enjoys a wide latitude of
discretion as to who to appoint such that being vested with said

authority, it is only he who may exercise said discretion. It bears

stress, however, that when the Code requires appointment of a
Provincial Legal Officer to be subject to the concurrence of the
Sangguniang Panlalawigan, what is to be confirmed is the legal
qualification of the appointees and not the discretion of the appointing
authority.
Hence, any arbitrary, whimsical, or
unreasonable
withholding of the requisite concurrence

-2despite the fact that the appointee is qualified constitutes an

encroachment into the prerogative and discretion of the provincial
governor as the appointing authority and could even be a ground for
administrative action against those responsible therefor.
Said
withholding without any valid reason at all cannot be made to
substitute the discretion of the appointing authority nor defeat the
mandatory position of a provincial legal officer. Thus, for as long as the
appointee possesses the required qualifications and none of the
disqualifications, it is now a ministerial duty which the law enjoins on
the part of the Sangguniang Panlalawigan to concur the appointment.
In the event that concurrence to the appointment is unjustifiably
withheld by the sanggunian, we are of the view that a special civil
action for Mandamus may be invoked before the proper court under
the pertinent provisions of the Rules of Court.
In reply to your fourth-captioned query, please be informed that
having been designated as acting Provincial Legal Officer, the duties of
the office in the latter being now temporarily vested upon you in
addition to your duties as Assistant Provincial Legal Officer, you may
represent the province in all its cases. That while the appointment of a
provincial legal officer is subject to the concurrence of the
Sangguniang Panlalawigan, designation, however, may not require the
same because as held in the case of Benemerito vs. CSC, G.R. No.
92044, September 20, 1990, as a personnel action, designation is a
mere imposition of additional duties to a competent and qualified
officer/employee to be performed by him in a specific manner and does

not call for the issuance of an appointment. As such, it cannot be

made subject to concurrence of the Sangguniang Panlalawigan.
Hope to have enlightened you on the matter.
Very truly yours,

INGENIERO

JESUS
Assistant Secretary

LS:68/La

I.