Department Of Social Welfare v. Commission On Audit

INTING, J.:

Before the Court is a Petition1 for Certiorari under Rule 64 in relation to Rule 65 of the Rules of Court assailing the Commission on Audit (COA) Commission Proper (COA Proper) Decision No. 2020-3342 dated January 31, 2020 that denied the Department of Social Welfare and Development (DSWD)'s request for reconsideration of COA Legal Retainer Review (LRR) No. 2018-096 dated June 7, 2018. The Antecedents Central to the present controversy is DSWD's hiring of Atty. Melanie D. Ortiz-Rosete (Atty. Ortiz-Rosete) as private legal retainer of DSWD Field Office No. 10 (FO). Previously, in 2015 and 2016, upon the Solicitor General's approval and COA's concurrence,3 DSWD already contracted Atty. Ortiz-Rosete to appear as counsel in all civil cases pending before the trial courts and involving the FO or its officials.

DSWD sought to continue its engagement of Atty. Ortiz-Rosete through 2017. Thus, on November 2, 2016, DSWD executed a Contract of Service4 (Contract) rehiring Atty. Ortiz-Rosete as the FO's private legal retainer covering the period of January 1, 2017 to December 31, 2017 (2017 Contract). Subsequently, in a Letter5 dated December 5, 2016, the DSWD requested the Solicitor General's approval to renew Atty. Ortiz-Rosete's authority to appear as the FO's counsel.

The Solicitor General granted this request on May 22, 2017.6 Later on, in a Letter7 dated January 5, 2018, DSWD requested for the COA's concurrence in relation to the aforementioned hiring. Ruling of the COA LRR The COA LRR denied the request on account of DSWD's belated application for concurrence.8 It noted that DSWD requested the COA to concur in the 2017 Contract only on January 5, 2018, or when said agreement had already expired. It explained as follows: First, requests of this nature must be obtained prior to hiring of a private lawyer or, in exceptional cases, the expiration of his contract.9 Second, COA Circular No. 86-255,10 as amended, requires the COA's concurrence as a pre­condition to a government agency's hiring of a private legal counsel.11 Seeking compassion and leniency, DSWD moved for reconsideration12 before the COA Proper.

It cited the following reasons to justify Atty. Ortiz-Rosete's rehiring: 1. The DSWD Central Office has only four lawyers x x x they cannot provide all the legal assistance sought by all DSWD FOs; 2. It would be unjust for Atty. Ortiz-Rosete not to be compensated for the services she rendered in 2017; 3.

Atty. Ortiz-Rosete's expertise in legal matters pertaining to the DSWD has created trust and confidence between them; 4. The Office of the Solicitor General (OSG) deputized Atty. Ortiz-Rosete as private legal counsel of DSWD FO No. 10 for the period of January 1, 2017 to December 31, 2017 as early as May 22, 2017. Likewise, Director Martha Roxana C. Sese, Cluster 6 - Health and Science, National Government Sector (NOS), this Commission, gave a favorable recommendation on the DSWD's request for concurrence in the Contract of Services of Atty. Ortiz­Rosete; and 5.

COA granted concurrence with respect to Atty. Ortiz-Rosete's 2015 and 2016 Contracts of Services, justifying the exceptional reasons for DSWD FO No. 10 to engage her services.13 Stated differently, DSWD asse1ied that Atty. Ortiz-Rosete's rehiring was justified because: (a) the DSWD Central Office's scarce legal manpower could no longer accommodate requests for legal assistance from the FOs; (b) DSWD developed trust and confidence in Atty. Ortiz­-Rosete on account of her previous years' service to DSWD; (c) the Solicitor General approved the 2017 Contract; (d) the COA Director already recommended that DSWD's request for concurrence be granted; and (e) the COA already concurred in the 2015 and 2016 Contracts hiring Atty. Ortiz-Rosete.

Further, it pointed out that Atty. Ortiz-Rosete already rendered the required services pursuant to her 2017. Thus, she must be compensated for the work she has performed.14 Ruling of the COA Proper In the assailed Decision No. 2020-334, the COA Proper denied DSWD's motion and affirmed the COA LRR's ruling.15 It emphasized that, pursuant to COA Circular No. 86-255, as amended by COA Circular No. 95-011, as well as the Court's pronouncements in Polloso v. Hon. Gangan16 (Polloso) and Phividec Industrial Authority v. Capital Steel Corporation,17 the Solicitor General's approval and the COA's concurrence shall first be secured before the DSWD may engage the services of a private legal counsel.18 Expenditures arising from the hiring of private lawyers without the aforementioned prior written conformities shall be considered as irregular expenditures.19 While it is true that this procedural rule may be relaxed, it is incumbent upon the party invoking liberality to justify their noncompliance with the rules.

In the present case, DSWD admitted that its request for concurrence relative to the 2017 Contract was filed late or when the Contract was already expired. DSWD did not offer any reason justifying specifically its belated filing.20 Thus, the COA Proper found no reason to set aside the procedural requirements of prior approval by the Solicitor General and concurrence by the COA. To be sure, the explanations provided by DSWD do not relate to its noncompliance with the rules or reasons the noncompliance may be excused.

Rather, the averments (e.g., lack of DSWD lawyers/necessity of engaging private lawyers, previous engagements of the same lawyer, previous concurrences by the COA, etc.) pertained to substantial matters cited to support DSWD's request/application. Still, the COA Proper found the reasons insufficient21 to warrant the COA's concurrence. The COA Proper also ruled that the payment of Atty. Ortiz-Rosete's compensation shall be the responsibility of the DSWD officials who approved/authorized the Contract on account of their clear violation of rules and regulations.

According to the COA Proper, the ruling is supported by the Court's pronouncement in Polloso,22 as well as Section 10323 of Presidential Decree No. 1445. Furthermore, the COA Proper did not find persuasive DSWD's reliance on the COA Director's favorable recommendation relative to the 2017 Contract and the COA's prior year concurrences. First, the COA Director's action on its request for concurrence is merely recommendatory.

Second, the COA's concurrences in 2015 and 2016 do not necessarily mean that all subsequent requests submitted by the COA will be granted automatically.24 Issue Did the COA Proper commit grave abuse of discretion when it did not concur in the 2017 Contract rehiring Atty. Ortiz-Rosete on account of the lack of the required prior written conformities of the Solicitor General and the COA? Our Ruling The Court resolves to dismiss the petition for lack of merit. I Preliminarily, the Court addresses matters of procedure concerning the timeliness of the present petition's filing and the sufficiency of the allegations contained therein.

First, the following circumstances establish that the present petition was filed on time: (a) DSWD received a copy of the assailed ruling on November 11, 2020; (b) Pursuant to the 30-day reglementary period under Section 3, Rule 64 of the Rules of Court, DSWD had until December 11, 2020 to file its petition. However, right on the deadline, it requested for an additional 30 days;25 (c) The Court granted this request and gave DSWD another 30 days counted from December 11, 2020 within which to file its petition; and (d) The 30th day of the extended period fell on January 10, 2021, a Sunday. DSWD filed the present petition on January 11, 2021, or the immediately succeeding business day.

Second, although timely, it is proper to dismiss the present petition outright for its lack of bona fide imputations of grave abuse against the COA Proper. The Court's review of COA decisions via Rule 64 petitions is limited to jurisdictional errors or grave abuse of discretion.26 In general, the Court shall dismiss the petition outright and uphold the COA's ruling27 unless the petitioner establishes a prima facie case of grave abuse in his petition, that is, to specifically identify those acts committed by the COA that had been unauthorized, whimsical, or capricious.28 The grounds cited by DSWD for the allowance of the present petition only allege that: (a) there are exceptional circumstances surrounding the present case, and (b) Atty. Ortiz-Rosete's engagement in 2017 was necessary and indispensable.29 The arguments, at best, point out mere errors of judgment. These are beyond the scope of certiorari proceedings.30 II At any rate, the Court finds the COA Proper's refusal to concur in the subject Contract to be in accord with the prevailing rules and jurisprudence.

In general, government entities are prohibited from securing the services of a private legal counsel. As the law office of the government, the Office of the Solicitor General is vested with the exclusive authority to represent the Philippine government, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer.31 Prior Written Conformity/Concurrence Requirement By exception, government agencies may be allowed to engage a private lawyer, provided that they first comply with applicable rules and regulations. In particular, COA Circular No. 86-255, as amended by COA Circular No. 95-011, sets forth the following categorical requirement: [P]ublic funds shall not be utilized for payment of the services of a private legal counsel or law film to represent government agencies in court or to render legal services for them.

In the event that such legal services cannot be avoided or is justified under extraordinary or exceptional circumstances, the written conformity and acquiescence of the Solicitor General or the Government Corporate Counsel, as the case may be, and the written concurrence of the Commission on Audit shall first be secured before the hiring or employment of a private lawyer or law firm. (Italics and underscoring supplied.) The rule is clear: the prior written conformity and concurrence of the Solicitor General and COA, respectively, are indispensable. There must be strict compliance: it must be timely (i.e., obtained prior to the hiring or employment of private lawyer) and complete (i.e., approval/concurrence of both the Solicitor General and COA).

Otherwise, the engagement of a private lawyer is deemed unauthorized.32 In the present case, DSWD's alleged compliance with the rule is not only belated, but also incomplete. Following are the dates critical to DSWD's engagement of Atty. Ortiz-Rosete relative to calendar year 2017: