The chairman of the Subic Bay Metropolitan Authority (SBMA) has disputed an interpretation by a senior Presidential Management Staff (PMS) official that the appropriate appointing authority in the SBMA is the administrator, not the chairman.
Martin Diño, in a seven-page letter to Assistant Secretary Erwin Enad, cited a Civil Service Commission resolution on which the PMS interpretation was based by Enad “has been reversed by the Court of Appeals.”
“Hence, [it]cannot be the basis of any opinion, or at the very least, should not have been cited,” Diño said.
It was his reply to Enad’s January 30 letter in which the PMS official claimed that the “appointing authority of the SBMA employees is its Administrator and Chief Executive Officer,” citing CSC Resolution No. 110154 dated March 29, 2011.
The resolution, according to Enad, based its decision on Executive Order 340 s. 2004.
Diño earlier asked the PMS for clarification who between the two senior SBMA officials, chairman or administrator, has the power to appoint lower-ranked officers in the agency.
Diño reminded Enad that, “in all commissions, including the Constitutional Commission, and boards, the chairman is the appointing authority.”
He said it is clearly provided in Section 2 of Executive Order (EO) 340, series of 2004, that the “SBMA chairman shall be the head of agency.”
As such, the SBMA chairman “is thus vested with the sole power to appoint lower-ranked officers” of the agency.
The 1987 Constitution, in Section 16, Article VII, provides that Congress “may, by law, vest the appointment of other officers lower in rank in the head of the board, Diño said.
While the law may not authorize an undersecretary to appoint lower-ranked officers in the Executive department, “in an agency, the power is vested in the head of agency,” he said.
“In a board, the head is also the chairperson of the board,” Diño added, citing the same provision. “…[T]he law may not also authorize officers other than the head of the agency, commission or board to appoint lower-ranked officers.”
He quoted the pertinent provision that the Constitution “authorizes Congress to vest the power to appoint lower-ranked officers specifically in the heads of the specified offices, and in no other person.”
Agencies, like departments, have no collegial governing bodies but have heads of agencies.
”Thus ‘heads’ applies to agencies,” Dino said. “Any other interpretation is untenable.”
Using the above provision, the Supreme Court sitting en banc, settled the “recurring controversy as to who is the appointing authority in the boards or agencies such as the SBMA, in the landmark case of Rufino, et al. vs. Endriga, et al,” Diño said in his letter, which cited the gist of the ruling.
“The above-cited provision of the Constitution is crystal clear and unequivocal, and the legal doctrines laid down in the above-cited case are instructive that the Chairman of the SBMA Board, who is Head of Agency, has the sole authority to appoint lower-ranked officers of the SBMA,” he stressed.
Dino said, “Since the appointing power is exclusively delegated to the Chairman of the Board, who is the Head of Agency, this power can no longer be further delegated to a member of the board or even to the board as a whole.”
“Corollary to this, it is only Congress, by law, who may delegate it to other officers or members of the board, other than the chairman,” he added.
“With due respect, not even the Office of the President, much more your office, or even the SBMA Board, could further delegate the already delegated appointing authority,” Dino told Enad.
He also cited Sections 29 and 30, Chapter 6 of EO 292 to buttress his argument.
Section 29 on Powers and Duties provides that the head of bureau “shall exercise overall authority in matters within the jurisdiction of the bureau…”
Section 30 on Authority to Appoint and Discipline provides that the “head of bureau or office shall appoint personnel to all positions in his bureau or office in accordance with law.”
Dino also wrote that he would treat Enad’s letter “as your personal opinion.”
He reminded the PMS official that high-ranking government officials “should be very circumspect and prudent in issuing official letters using the letterhead of the Office of the President.”
Dino said such letters may be taken by others “as the official statement of the Office of the President or worse, may be unduly used to advance personal interests.”