REPUBLIC OF THE PHILIPPINES

OFFICE OF THE OMBUDSMAN

Agham Road, Diliman, Quezon City

FIELD INVESTIGATION
BUREAU II,
Complainant,
- versus - OMB-C-A-____________
(Administrative Case)
JUANA DELA CRUZ,
Respondent.

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VERIFIED POSITION PAPER

WITH ENTRY OF APPEARANCE

Comes now, the undersigned counsel, unto this

Honorable Office most respectfully entering his appearance in
the above-captioned case. As such, he requests that he be
furnished with copies of orders, resolutions, decisions, or any
other processes which may be issued in relation thereto.

THE PARTIES

1. Respondent is a permanent employee of the Dept.

appointed to the position of Sr. Supervisor with Salary Grade
22. She was appointed in said position on 2 January 2013.
Copy of her appointment is hereto submitted as Annexes “1”
to form integral part of this Position Paper. She may be served
with processes of this Honorable Office through the
undersigned and through her address which is already
appearing on record.

2. Complainant is the Field Investigation Office II of

the Office of the Ombudsman.
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THE CASE

3. This is an administrative case for Grave

Misconduct, Gross Neglect of Duty and Conduct Prejudicial to
the Best Interest of the Service against Respondent arising
from the liquidation of cash advances given to her during
Conference held on February 14-22, 2015 and Yearend
Assessment.

THE FACTS

4. defray the expenses for said activity, Respondent

was issued a cash advance in the amount of One Million Two
Hundred Four Thousand Five Hundred Pesos
(Php1,204,500.00).

5. Without having gathered all the receipts Respondent

needed to liquidate the cash advance issued to her, her
secretary resigned. The receipts were still incomplete so
Respondent instructed another staff to collect receipts from
the participants. She gave her staff an electronic instruction to
collect the receipt from other participants who utilized the
cash advance given to her. Printed copies of the instructions of
Respondent to her former secretary are hereto submitted as
Annexes “2” to form part of this Position Paper.

6. The instructions Respondent gave to her former

staff were unequivocal and stressed the importance of
collecting the receipts needed for her to fully liquidate. The
instruction also readily negates any Grave Misconduct, Gross
Neglect of Duty or Conduct Prejudicial to the Best Interest of
Service on the part of Respondent.

7. Apart from the instruction given by Respondent to

her staff to complete the receipts, she also advised XYZ’s
Accounting Department that she was still collecting all
receipts in support of her liquidation through a Memorandum
dated May 21, 2015. Copy of said Memorandum is hereto
submitted as Annex “3” to form part of this Position Paper.

8. Respondent’s effort to collect all the receipts from

the persons who used the cash advance did not materialize
because many did not surrender their receipts, she undertook
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to liquidate the subject cash advance through payroll

deductions so that the money will be returned to the
government. The subject cash advance was fully liquidated in
October 2017 as attested by the Certificate of Liquidation
issued by XYZ’s Accounting Department which is hereto
submitted as Annex “4” to form integral part hereof.

9. It will be seen that while Respondent was already

liquidating through salary deductions, she still explained with
XYZ’s Accounting Department about the missing documents
relevant to the cash advance and its liquidation. This
emphasized Respondents efforts in locating the receipts while
liquidating at the same time through payroll deductions.

10. With Respondent’s continued exertion to complete

the receipts, she was able to locate some pertaining to the
subject cash advance. She found that these receipts were
included or brought in the outgoing documents of her office.
Copies of said receipts are hereto submitted as Annexes “5” –
“5-D” to form integral part hereof.

11. At that time Respondent had a new secretary who

was not yet familiar in liquidation process coupled by the
Conference Secretariat’s failure to transmit to her all receipts
that would enable her to fully liquidate. Hence, partial
liquidation of the subject cash advance in the amount of Fifty
Six Thousand Five Hundred Sixty Four and 45/100 Pesos
(Php 56,564.45) was submitted on September 2016. For the
remaining amount, Respondent again requested liquidation
through payroll deductions which she completed on

12. Just like in her October 2015 cash advance,

Respondent directed her staff to facilitate and prepare
immediate liquidation of her February 2016 cash advance.
However, full liquidation was not made due to difficulty in
completing the official receipts.

13. At any rate, liquidation through payroll deduction is

being observed in XYZ as shown by the list of officers and
employees using this scheme in settling cash advances given
to them. A list of XYZ Officers and employees who liquidated
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their cash advances through payroll deduction is hereto

submitted as Annex “6” – “6” to form integral part hereof.

THE ISSUE

Whether there is substantial evidence against

Respondent for Grave Misconduct, Gross Neglect of Duty and
Conduct Prejudicial to the Best Interest of the Service.

ARGUMENTS/DISCUSSION

14. Section 5, Rule 133 of the Rules of Court provides

that “Substantial evidence. — In cases filed before
administrative or quasi-judicial bodies, a fact may be deemed
established if it is supported by substantial evidence, or that
amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion.” (emphasis supplied)

15. In Honorable Ombudsman Simeon V. Marcelo vs.

Leopoldo F. Bungubung and Hon. Court of Appeals, G.R.
No. 175201, April 23, 2008, the Supreme Court held that
“Substantial evidence, which is more than a mere scintilla but is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion, would suffice to hold one
administratively liable. xxx While substantial evidence does not
necessarily import preponderance of evidence as is required in
an ordinary civil case, or evidence beyond reasonable doubt as
is required in criminal cases, it should be enough for a
reasonable mind to support a conclusion.” (emphasis supplied)

16. “Misconduct has a legal and uniform definition.

Misconduct has been defined as an intentional wrongdoing or a
deliberate violation of a rule of law or standard of behavior,
especially by a government official. A misconduct is grave
where the elements of corruption, clear intent to violate the law
or flagrant disregard of established rule are present” (Monico
K. Imperial, Jr. vs. Government Service Insurance System,
G.R. No. 191224, October 4, 2011).

17. This definition of misconduct and when it becomes

grave is consistent in jurisprudence. It explains that the
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wrongdoing must be intentional or the violation of a rule of law

or standard of behavior should be deliberate for an act to be
considered as misconduct. Without these requirements, there
is no misconduct.

18. To be considered grave, the elements of corruption,

clear intent to violate the law or flagrancy in disregarding
established rule are present. Indeed, these are loaded
requirements.

19. Analysis of the events and Respondent’s actions

surrounding the liquidation of cash advances given to her
disproves misconduct on her part.

20. Annexes “2” – “2-F” where Respondent instructed

her staff to collect and complete the receipts so that she will be
able to fully liquidate the cash advances eliminate the element
of intentional wrongdoing or deliberate violation of rule of law
or standard of behavior. In these annexes, her intent to
liquidate and comply with the rules is undeniable showing
that there is no misconduct on her part.

21. Further, Respondent immediately liquidated

partially the amount of Fifty Seven Thousand Three
Hundred and Thirty Three and 13/100 Pesos
(Php57,333.13) for the October 14-22, 2015 cash advance
and the amount of Fifty Six Thousand Five Hundred Sixty
Four and 45/100 Pesos (Php 56,564.45) for the February 3-
6, 2016 cash advance.

22. These are partial liquidations using the receipts

available at the time. Although, incomplete liquidation, this
nevertheless show Respondent’s compliance to her obligation.
Also, the instructions she gave to her staff to complete the
receipts needed for liquidation eradicate any elements of
corruption, clear intent to violate the law or flagrant disregard
established rule on her part.

23. As to the portion of cash advance that Respondent

was not yet able to liquidate at that time, her letter to XYZ’s
Accounting Office coupled by other evidence explain it very
well and show that she did not misappropriate the same
neither did she used it for personal purpose.
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24. At this point, Respondent invites the attention of

this Honorable Office to the fact that item 9.3 of the COA
Circular No. 97-002 speaks of instances where there is“no
liquidation”. In this scenario, the Auditor shall advise the Head
of Agency to withhold payment of any money due the
Accountable Officer. Meaning, the rules even allow instances
of retrieving unliquidated cash advance to a disbursing officer
by withholding any monetary receivables he/she may have
from the office.

25. In this case, however, Respondent was able to fully

liquidate the cash advances given to her in October 2015 and
February 2016. While portion of these cash advances where
liquidated through payroll deductions, it was done not to
further delay liquidation because completing the receipts from
other participants of the event was more difficult.

26. Despite the many tasks lodged to Respondent as

shown in her Job Description which is hereto submitted as
Annex “7”, she was not amiss in ensuring that the cash
advances subject of this investigation are liquidated.

27. Further Respondent’s former staff who were both

part of the Secretariat team for the two activity of XYZ involved
in this controversy both attested through an affidavit
Respondent’s strict observance of liquidation procedures and
prudent use the cash advances given to her. Copies of their
respective Affidavits are hereto submitted as Annexes “8” and
“9” to form integral part hereof.

28. Taken these circumstances and annexes together,

there is no substantial evidence against Respondent for Grave
Misconduct.

29. Gross neglect of duty or gross negligence “refers to

negligence characterized by the want of event slight care, or by
acting or omitting to act in a situation where there is a duty to
act, not inadvertently but willfully and intentionally, with a
conscious indifference to the consequences, insofar as other
persons may be affected. It is the omission of that care that
even inattentive and thoughtless men never fail to give to their
own property. It denotes a flagrant and culpable refusal or
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unwillingness or a person to perform a duty. In cases involving

public officials, gross negligence occurs when a breach of duty
is flagrant and palpable. In contrast, simple neglect of duty
means the failure of an employee or official to give proper
attention to a task expected of him or her, signifying a disregard
of a duty resulting from carelessness or indifference” (Office of
the Ombudsman vs. Samson de Leon, G.R. No. 154083
dated Feb 27, 2013)

30. The explanations above and annexes also show that

there is no substantial evidence against Respondent for Gross
Neglect of Duty.

31. Contrary to the claim in the Complaint, Respondent

was able to fully account the cash advances given to her. In
fact, the complaint even admitted that Respondent was able to
fully liquidate these cash advances on November 2017 as
shown by the Certificate of Liquidation issued by XYZ.
Respondent hereto submits the copy of said Certificate as
Annex “10” to form integral part hereof.

32. Respondent did her duty as disbursing officer to

fully liquidate her cash advances as she was issued with
Certificate of Liquidation. Although her liquidation went
beyond the period allowed, her explanations as supported by
evidence justifies the same.

33. There is no negligence in this case to speak of

especially that one characterized by want of event slight care,
or by acting or omitting to act in a situation where there is a
duty to act. The allegations in the complaint that Respondent
committed Gross Neglect of Duty is unfounded and
contradicted by the evidence on record.

34. Any act that tarnishes the image and integrity of

public service may be considered Conduct Prejudicial to the
Best Interest of the Service.

35. In Office of the Ombudsman-Visayas and Emily

Rose Ko Lim Chao vs. Mary Ann T. Casto, G.R. No.
172637, April 22, 2015, Conduct Prejudicial to the Best
Interest of Service has been defined as “acts may constitute
conduct prejudicial to the best interest of the service as long as
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they tarnish the image and integrity of his/her public office”.

Also in the said case the Supreme Court defined the word
“gross” and “prejudicial” when it comes to the offense of
Conduct Grossly Prejudicial to the Best Interest of Service. The
Court held that “The word gross connotes something out of
measure; beyond allowance; not to be excused; flagrant;
shameful while prejudicial means detrimental or derogatory to a
party; naturally, probably or actually bringing about a wrong
result”. (emphasis supplied)

36. Respondent was able to account the cash advances

given to her and the delays in liquidation of some of it are not
because of malicious or intentional wrongdoing in her part.
Respondent did not commit any act that gave bad image to
public service as she immediately liquidated the cash
advances involved, albeit partial.

37. Thereafter, she instructed her staff to complete all

receipts so that full liquidation will be done. She also wrote
XYZ’s Accounting Office to inform that some receipts were
missing and that the Conference Secretariat did not coordinate
with her regarding the liquidation documents.

38. Ultimately, Respondent was issued with a

Certificate of Liquidation. Hence, she committed no act that
tarnished the integrity and image of public service and she the
allegations of Conduct Prejudicial to the Best Interest of the
Service against her merits dismissal.

PRAYER

WHEREFORE, it is most respectfully prayed of this

Honorable Office to render a Decision dismissing the
administrative complaint against Respondent for Grave
Misconduct, Gross Neglect of Duty and Conduct Prejudicial to
the Best Interest of the Service.

Other reliefs, just and equitable under the premises, are

likewise prayed for.

Quezon City, May 29, 2018.

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VICTOR MAGTANGGOL
Counsel for Respondent
Address
Roll No. 120698
IBP No. ____________
PTR No. ____________
MCLE COMPLIANCE No. V-0022766

Copy furnished:

Office of the Ombudsman

Agham Road, North Triangle
Diliman, Quezon City