SHE ALREADY created a furor with her “midnight appointments,” or appointments made on the eve of an election ban. Yet a month after the May 10, 2010 elections, then President Gloria Macapagal Arroyo still managed to sneak in a final batch of 13 appointments on the eve of her departure from office.
Arroyo signed the appointments on June 10, 2010 even as dusk had settled on her presidency. She did so seemingly oblivious to the fact that the day before, June 9, the joint committee of Congress, which canvassed the votes, had already proclaimed Benigno Simeon Aquino III as the new President of the Republic.
Article VII, Section 15 of the 1987 Constitution makes it clear: “Two months immediately before the next Presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.”
As it was, Arroyo had already come under fire for naming an army of appointees – by the most reliable count about 200 at least – to various government positions, including lucrative directorships in government-owned and controlled corporations (GOCCs), just days before the March 10 cut-off for appointments set by the Constitution.
But documents obtained by the Philippine Center for Investigative Journalism (PCIJ) show that Arroyo made another batch of appointments as late as a mere 20 days before she handed the reins of power to Aquino. More to the point, the appointments were made a full three months into the constitutional prohibition on appointments.
Appointments “to rank”
In a June 10, 2010 letter to Career Executive Service Board (CESB) chairman Bernardo P. Abesamis signed by Arroyo and endorsed by her Executive Secretary, Leandro Mendoza, Arroyo appointed 13 senior officials to the next higher rank in the Career Executive Service (CES). The appointees “to rank” include three department undersecretaries, four regional directors, and several directors of various agencies.
These 13 officials are:
- Defense Undersecretary Proceso Domingo, appointed to the rank of CESO 1;
- Public Works Regional Director Angelito Twano to CESO III;
- Presidential Management Staff Director Susan Solo to CESO III;
- Agriculture Regional Director Remedios Ongtangco to CESO III;
- National Food Authority Department Manager Mercedes Yacapin to CESO IV;
- Department of Education Regional Director Teofila Villanueva to CESO III;
- Philippine Orthopedic Center Chief of Medical Professional Staff Luisito Maano to CESO V;
- Justice Undersecretary Jose Vicente Salazar to CESO I;
- Science and Technology Undersecretary Graciano Yumul to CESO I;
10. Interior and Local Government Regional Director Evelyn Trompeta to CESO II;
11. Trade and Industry Provincial Director Desiderio Belas to CESO III; and
12-13. Presidential Management Staff Directors Irene Calingo and Josephine Raynes to CESO III.
“Pursuant to the provisions of existing laws, (the 13 officials are) hereby appointed to ranks in the Career Executive Service (CES),” Arroyo said in her letter to Abesamis. The appointment of an official “to rank” is in effect a promotion to the next higher salary rank within the same government position.
The Career Executive Service (CES) was created by then President Ferdinand Marcos in 1972 to serve as a professional pool of government career administrators. In theory, the CES system should shield the bureaucracy from the politicizing influence of whoever is in power.
The CES consists of six ranks, with the highest reserved for CESO I, with salary grade 30, just three grades below the president, and the lowest being CESO VI, with a salary grade of 25.
With the implementation of the second phase of the Salary Standardization Law III on June 24, the President of the Republic, who carries a salary grade of 33, is paid P95,000 per month. A CES I official who carries a salary grade of 30 would be paid P56,943.
According to former Civil Service Commission (CSC) chairperson Karina David, the appointments to rank clearly violate the constitutional ban on appointments that starts two months before a presidential election and stays until the end of the outgoing president’s term.
Still an appointment
“Appointment to rank is an appointment and therefore covered by the midnight appointment ban,” David told the PCIJ. “Tingnan mo na lang, what were the words used in the approval letter of the president? Hindi ba ‘appointment’?”
But CESB officials have been quick to defend Arroyo’s appointments. According to CESB deputy executive director Arturo Lachica, the eight-member board had passed a resolution “clarifying” the ban on appointments. In Lachica’s view, the resolution effectively legalized appointments to rank during the election ban.
“The Board has taken the position that the ban on appointments does not cover the appointment to rank,” said Lachica, “because appointment to rank is not the appointment contemplated by the ban.”
CESB Resolution 870, approved by the board on June 2, 2010, states that “appointment to a CES rank cannot properly be deemed synonymous to an appointment to a position in the legal sense for it is merely a completion of a previous appointment and does not entail the conferment of an authority to exercise the functions of an office.”
Under civil service rules, the president makes appointments based on the CESB’s recommendations. The CESB in turn bases these appointments on the recommendations of the heads of agencies.
But the PCIJ has learned that three members of the CES Board that signed Resolution 870 allowing appointments during the election ban are themselves among the direct beneficiaries of the Resolution. Defense Undersecretary Domingo, Public Works Regional Director Twano, and Presidential Management Staff Director Solo are members of the CESB’s eight-person board.
All three affixed their signatures on the board resolution allowing appointments to rank despite the election ban. This is even though all three of them were also among the 13 officials that the same board recommended for appointment by Arroyo and whose June 10 appointments are now being questioned.
The long and short of it: The three signed the resolution that exempted their own appointments from the election ban.
“It is really a conflict of interest,” David fumes.
She adds that Solo, as a director in the Presidential Management Staff, also heads the group that reviewed the recommendations for appointments. “It is PMS that reviews the recommendations from the CESB, and Solo is the head of the unit of the PMS in charge of reviewing these recommendations,” David points out. “Patong-patong ang conflict of interest (The layers of conflict of interest just keeps on piling up).”
The CESB website describes Solo as “the Acting Head of the President’s Personnel Group Secretariat.” Solo started her career as a Presidential Staff officer under then President Corazon Aquino.
There is also the fact that CESB was already recommending appointments to rank during the election ban even before it decided to issue its “clarification.”
For instance, the board recommended to Malacañang the appointments of Maano, Salazar, and Yumul on May 18, 2010, or more than two months after the election ban, but nearly a month before the board issued its resolution justifying election-ban appointments. The recommendations to appoint Belas and Ongtangco, meanwhile, were made on June 2, 2010, the same day the board released the resolution.
Confronted with these details, Lachica said: “You have to ask the board na. Pero ang ano kasi diyan, dito sa resolution, apparently kasama sila (You have to ask the board that. But the thing is, here in the resolution, apparently they’re included).”
But Lachica stressed that the appointees were all eligible for the appointments. Twano, for example, had been conferred CES eligibility as early as March 2000, but merely neglected to apply for CESO rank until recently. Added Lachica: “Domingo was already CESO even before, and Susan Solo was also CESO. Their ranks were just adjusted.”
Asked if this adjustment in rank also carried with it an adjustment in pay, Lachica admitted that there was a “step increment” in pay that resulted from the Arroyo appointments. The constitutional ban on appointments was meant to prevent senior government officials from politicizing the bureaucracy by currying favors through appointments or promotions during the last days of their term of office. This is also why Article XXII Section 261 of the Omnibus Election Code prohibits promotions or increases in salaries of government officials during an election period.
Lachica, however, said that these salary adjustments were insignificant. “The increases are just P1,000,” he told PCIJ. “In some cases, it won’t even reach that.”
“That’s not true,” David countered. “That is not just P1,000. From Director IV to Assistant Secretary, that’s several thousands. And besides, that is not the point. The point is, it is still wrong.”
Asked if the salary adjustments would violate the spirit, if not the letter, of the ban on promotions and appointments, Lachica replied, “It was the board’s decision. The board simply looked into the aspect of the appointments. The issue on the salary increase, that is negligible and it was no longer taken into account because the board has already said the appointment to rank is different from appointment to position.”
To former 1987 Constitutional Commission delegate Rene Sarmiento, though, these appointments “to rank” make up what he called a “grey area” in the deliberations for the 1987 Constitution. He said that while it was clear that appointments to positions were prohibited by the election ban, the Commission failed to make a call on appointments to rank.
“The intention was that two months before the presidential election, up to the end of the term, you cannot make appointments,” said Sarmiento, who is now an Elections commissioner. “(But) these appointments to rank look legally debatable. Grey area ito.”
Sarmiento, however, said that any adjustment in salaries may already be covered by the ban.
Spirit of ban
“If we are to extend or expand the meaning of promotions,” he said, “then we can say that this is really not permitted, because the salaries go up along with the ranks.”
“The spirit of the provision (on election ban appointments) will be eroded especially if it (the ban) will not prejudice the performance of the government,” Sarmiento explained. “More than a question of legality or constitutionality, it is a question of conflict of interest and propriety. It looks like something is flawed.”
To be fair, some of the appointments may be well-deserved. Most of the appointees are old-time career service officers whose appointments to rank were rushed at the last minute by Malacañang. Interior and Local Government Regional Director Trompeta, for instance, was awarded the Presidential GAWAD CES Award in 2009, along with six other outstanding Career Service Officers.
Unfortunately, the Arroyo administration’s insistence on rushing their appointments just three weeks before a new president was to take his oath of office places all such appointments under a cloud of doubt and raises questions of propriety and conflict of interest. Besides, David says, there was apparently no urgency in rushing these appointments in rank anyway, since these officials had already been performing the functions of their office for some time now.
Yet if some of the officials made good with their career, others had a more colorful record in government service. Defense Undersecretary Domingo, for example, had served as National Irrigation Administration chief, presidential adviser on Infrastructure, and Local Water Utilities Administration head at various times during his career.
In June 2007, however, Domingo was ordered suspended for three months on the recommendation of the Presidential Anti-Graft Commission for violation of Republic Act 3019, or the Anti-Graft and Corrupt Practices Act. Domingo had failed to declare three properties he owned in Cabanatuan, Nueva Ecija, in his Statement of Assets and Liabilities and Net Worth or SALN. Domingo said he and his wife had just gotten confused in drawing up his SALN.
It was then Executive Secretary Eduardo Ermita who ordered Domingo’s suspension. Almost exactly three years later, Ermita’s successor to the Palace post, Leandro Mendoza, would rush Domingo’s appointment to higher rank to the CESB.
“Part of the check of the Board for appointments is integrity,” David said. “If you do not have clearance, or if you were suspended, that means you were found guilty, and you should not have been appointed.” – PCIJ, July 2010