Reports of corruption and misconduct against our municipal mayor have been piling up. We are planning to file a case against him to remove him from office. May we know the legal remedies for removing an elected official from office? Kindly advise us on how to initiate such action.
There are two ways to oust an otherwise qualified elected local government official, to wit: recall and administrative proceeding.
Recall refers to the removal of a public officer by the people before his term of office ends. It is an incident of the sovereign power of the people and is frequently described as a fundamental right of the people in a representative democracy (Garcia vs. Comelec, 348 SCRA 100). In case of elected local officials, the power of recall is exercised by the registered voters of the local government unit where the concerned local elective official belongs based on the people’s loss of confidence in him (Sec. 69, Republic Act 7160, as amended by RA 9244). It is initiated by filing a petition with the Comelec, supported by a sufficient number of the registered voters at the time of election of the local official sought to be recalled.
Under the law, however, recall election may not be done one (1) year from the date of the official’s assumption to office or one (1) year immediately preceding a regular local election. (Sec. 74, Id.) Considering that the next regular election will be on May 9, 2016, which is less than one year from now, this remedy is no longer available to you.
Still, you may resort to the second mode of removing an elected public official, that is, administrative proceeding. As a public officer, elected local officials are accountable to the people, and they may be subject to appropriate disciplinary action for failure to abide by their responsibilities. Primarily, an elected local official may be disciplined, suspended or removed from office under the Local Government Code on account of dishonesty, oppression, misconduct in office, gross negligence, dereliction of duty, disloyalty, culpable violation of the Constitution and abuse of authority, among others (Sec. 60, RA 7160). The complaint is initiated by filing a verified complaint with the proper government unit, which should be filed before the Sangguniang Panlala¬wigan in the case of an elected official of a municipality like a municipal mayor. (Sec. 61, Id.)
Alternatively, a complaint against elected public officials may also be filed with the Office of the Ombudsman, which is granted by the Constitution with the power to investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient (Art. XI, Sec. 13, Constitution). The power of the Ombudsman applies to all kinds of malfeasance, misfeasance and nonfeasance that have been committed by any public officer or employee (Sec. 16, RA 6770). Misfeasance refers to a default in not doing a lawful act in a proper manner, malfeasance means doing of an act wholly wrongful and unlawful, and nonfeasance means omission to perform a required duty at all or total neglect of duty (Ombudsman Law of the Philippines, Dennis B. Funa, 2012 Ed., p. 136).
You may resort to this remedy by filing a written complaint under oath accompanied by affidavits of witnesses and other pieces of evidence, and a Certificate of Non-Forum Shopping (Rule III, Sec. 3, Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7, Series of 1990).
We hope that we were able to sufficiently address your concern. Please bear in mind that this opinion is based on the facts you narrated and our appreciation of the same. Our opinion may vary if facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com