1. Are the voting and procedural requirements of the ordinance authorizing the use of savings and augmentation under Section 336 of RA No. 7160 the same as those for the ordinance authorizing the use of savings as a fund source for a supplemental budget under Article 417 of RA No. 7160, as amended by Administrative Order (AO) No. 47 dated 12 April 1993 (implementing Section 321 of RA No. 7160)?
As to voting requirement – The affirmative vote of a majority of all the Sanggunian members is required to pass an Appropriation Ordinance, whether for annual or supplemental budget, under Article 107 (g) of the IRR of RA No. 7160. Relatedly, the use of savings and augmentation within the same expense class falls under the category of “Use of Appropriated Funds and Savings” under Section 336 of the same law. Hence, if the Appropriation Ordinance requires qualified majority in its passage, it follows that any modification in said appropriation will have to comply with the same requirement.
As to procedural requirement – A supplemental budget is not required in passing an ordinance authorizing the use of savings and augmentation within the same expense class under Section 336 of RA No. 7160 since the law merely requires the authority “by ordinance.”
While the ordinance under aforementioned Section 336 and an Appropriation Ordinance have the same voting requirements, each has a different procedural requirement. Further, the ordinance under Section 336 may have a regular format simply stating that the LCE and/or the Presiding Officer of the Sanggunian is authorized to augment any item in the approved annual budget for their respective offices from savings in other items within the same expense class of their respective appropriations, as opposed to the use of savings considered as funds actually available to be covered by a supplemental budget as provided under Article 417 of RA No. 7160, as amended by AO No. 47 (implementing Section 321 of RA No. 7160).
Should the Sanggunian decide to grant the LCE and/or the Presiding Officer of the Sanggunian with the authority to use savings and augment within the same expense class in their respective appropriations, the said authorization may be included as a general provision/section in the ordinance authorizing the annual appropriations.
2. What is the difference between the use of savings as a fund source for a supplemental budget under Article 417 of the IRR of RA No. 7160 as amended by AO No. 47 (implementing Section 321 of RA No. 7160) and the use of savings for augmentation under Section 336 of RA No. 7160?
The use of savings under Article 417 of the IRR, as amended by AO No. 47, implementing Section 321 of RA No. 7160 will require the enactment of an ordinance authorizing supplemental appropriations (supplemental budget).
Under AO No. 47, an ordinance providing for a supplemental budget may be enacted when supported by funds actually available as certified by the local treasurer. The said AO further provides that funds are likewise deemed actually available when there are savings.
In this case, the usual process of authorizing a supplemental budget will always apply. The supplemental budget will involve the reversion of the savings and its corresponding re-appropriation to any item of expenditure under any expense class. Accordingly, the Appropriation Ordinance shall be subject to review by the DBM or the Sangguniang Panlalawigan, as the case may be (Sections 326 and 327, RA No. 7160).
On the other hand, the use of savings for augmentation under Section 336 will require the enactment of an ordinance, without the necessity of a supplemental budget submitted by the LCE. The ordinance will give the omnibus authority to the LCE or the Presiding Officer of the Sanggunian to augment any item in the approved annual budget for their respective offices from savings in other items within the same expense class of their respective appropriations.
3. Does the proposed ordinance covering the grant of authority to the LCE and/or the Presiding Officer of the Sanggunian to use savings and augment within the same expense class in their respective appropriations under Section 336 of RA No. 7160 need to emanate from the LCE like that of a supplemental budget?
No. The proposed ordinance granting the authority to use savings under Section 336 of RA No. 7160 need not emanate from the LCE unlike that of a supplemental budget.
A supplemental budget reflects changes in the annual budget under the conditions provided in Section 321 of RA No. 7160 and Article 417 of its IRR as amended by AO No. 47. Accordingly, since the annual budget emanates from the LCE as provided under Section 318 of RA No. 7160, the supplemental budget should likewise emanate from the LCE.
On the other hand, the proposed ordinance granting authority to use savings under Section 336 is not a budget and need not emanate from the LCE.
4. How may the use of savings and augmentation under Section 336 and the use of the savings as funds actually available for supplemental budget under Article 417 of the IRR of RA No. 7160, as amended by AO No. 47 (implementing Section 321 of RA No. 7160) be distinguished?
The following matrix summarizes the distinctions between the use of savings under Sections 336 and 321
as aforementioned:
REQUIREMENT |
SECTION 336
(Use of savings and Augmentation)
|
SECTION 321
(Use of savings thru Supplemental Budget)
|
What is the instrument required for authority? |
Ordinance |
Appropriation Ordinance covering a supplemental budget |
Is there a need for a supplemental budget? |
No need for a supplemental budget |
Supplemental budget needed |
What is the purpose of the savings? |
For augmentation of existing item/s of expenditure within the same expense class |
For re-appropriation – may be to a different expense class |
Where should the proposal
emanate?
|
From the LCE or the Sanggunian |
From the LCE only |
For provinces or highly urbanized
cities, will the ordinance be subject to review by DBM?
|
No |
Yes |
5. Can the LGU pass an ordinance authorizing use of savings and augmentation under Section 336 of RA No. 7160 when operating under a reenacted budget?
No. Use of savings and augmentation under Section 336 of RA No. 7160 is possible only when there is an “approved annual budget” for the current year. A reenacted budget does not qualify as an approved annual budget for the current year.
6. Can the Sanggunian increase items of appropriation in the executive budget?
Yes, provided that the aggregate increase does not cause an excess over the total proposed amount in the executive budget pursuant to Article 415 (a) of the IRR of RA No. 7160.
7. Can the Sanggunian introduce/include new items in the executive budget?
Yes, but only to provide for statutory and contractual obligations and it does not cause an excess over the total proposed amount in the executive budget pursuant to Article 415 (a) of the IRR of RA No. 7160.
As reference to questions 6 and 7 hereof, the doctrine enunciated in the case of Sarmiento, et al. vs. The Treasurer of the Philippines, et al. (GR Nos. 125680 and 126313, September 04, 2001) may be applied where the Supreme Court ruled that under Section 25 (1), Article VI of the 1987 Constitution, Congress is enjoined from increasing the total budget for the operation of the Government as recommended by the President, not the individual items of appropriations. Records of the 1986 Constitutional Commission reveal that the purpose of the provision is to avoid the possibility of a big budget deficit if Congress were given an unbridled hand in passing upon the appropriations recommended by the President as specified in the budget. The constitutional prohibition against such increase is an assurance that the expected income of the government will be sufficient for the operational expenses of its different agencies and projects specified in the appropriations law.
It may be noted that the subject provision of R.A. No. 7160 prohibiting the increase in the proposed amount in the executive budget is similar to the provision in Executive Order No. 292 (the Administrative Code of 1987), particularly Section 24, Chapter 4 on Budget Authorization, Book VI, in the case of national government budgeting to wit:
“SEC. 24. Prohibition Against the Increase of Appropriation. – The Congress shall in no case increase the appropriation of any project or program of any department, bureau, agency or office of the Government over the amount submitted by the President in his budget proposal. In case of any reduction in the proposed appropriation for a project or program, a corresponding reduction shall be made in the total appropriation of the department, office or agency concerned in the total of the General Appropriations Bill.”
8. Can the Sanggunian pass an Appropriation Ordinance covering a supplemental budget for the current fiscal year after December 31?
No. The Sanggunian cannot pass an Appropriation Ordinance covering a supplemental budget for the current year after December 31.
Supplemental budgets cover changes in the annual budget, thus, they should be authorized within the fiscal year covered by the annual budget. Section 353 of RA No. 7160 provides that the official fiscal year of LGUs shall be the period beginning with the first (1st) day of January and ending with the thirty-first (31st) day of December of the same year.
Further, the reversion of funds under Section 322 of RA No. 7160 is at the end of the fiscal year (except in cases of continuing appropriations when the capital outlay projects are not yet completed).
9. Section 320 of RA No. 7160 provides that “The ordinance enacting the annual budget shall take effect at the beginning of the ensuing calendar year. An ordinance enacting a supplemental budget, however, shall take effect upon its approval or on the date fixed therein.” What about the requirement of publication under Section 59 of RA No. 7160 and Article 113 of its IRR?
Posting and/or publication, as the case maybe, of an ordinance is required under Section 59 of RA No. 7160. The mandatory word “shall” was used by the law without any qualification or exemption, as follows:
“(a) Unless otherwise stated in the ordinance or resolution approving the local development plan and public investment program, the same shall take effect after ten (10) days from the date a copy thereof is posted in a bulletin board at the entrance of the provincial capitol or city, municipal, or barangay hall, as the case may be, and in at least two (2) other conspicuous places in the local government unit
concerned.”
“(d) In the case of highly urbanized and independent component cities, the main features of the ordinance or resolution duly enacted or adopted shall, in addition to being posted, be published once in a local newspaper of general circulation within the city, provided, that in the absence thereof, the ordinance or resolution shall be published in any newspaper of general circulation.”
10. What is the effect if the Appropriation Ordinance is not posted or published? Is posting/publication a requirement for the effectivity of the Appropriation Ordinance?
If the Appropriation Ordinance is not posted and/or published, as the case may be, its validity may be questioned. However, laws, ordinances and other issuances enjoy the presumption of regularity and validity until invalidated by the court.
11. In the exercise of the veto power, the reenacted figure results in a situation where the expenditure is greater than the estimated income. What figure or procedure should the LGU adopt?
12. One of the functions of the Secretary to the Sanggunian is to keep the seal of the LGU and affix the same with his signature to all ordinances, resolutions, and other official acts of the Sanggunian. What is the effect on the ordinance if the Secretary to the Sanggunian does not sign the ordinance?
The law provides that the Secretary to the Sanggunian shall affix his signature to all ordinances and present the same to the Presiding Officer for his signature (Section 469 [c] [2], RA No. 7160; Article 122 [a] [3] [ii], IRR of RA No. 7160).
The requirement is mandatory. Accordingly, the Secretary to the Sanggunian cannot refuse to sign the Appropriation Ordinance. Otherwise, he/she may be liable under applicable laws.
Nevertheless, in case the Secretary to the Sanggunian refuses to sign, such refusal will not affect the validity of the Appropriation Ordinance duly passed by the Sanggunian. Otherwise, that would be tantamount to giving the Secretary to the Sanggunian the “veto power” or the control in deciding whether the Appropriation Ordinance will be valid or not, and if it will be submitted for the consideration of the LCE.
13. One of the functions of the Secretary to the Sanggunian is to keep the seal of the LGU and affix the same with his signature to all ordinances, resolutions, and other official acts of the Sanggunian and present the same to the Presiding Officer for his signature. What if the Presiding Officer does not sign the ordinance? What is the effect on the ordinance?
The following provisions of RA No. 7160 mandate the Presiding Officer to sign the ordinance:
The Secretary to the Sanggunian shall affix his signature to all ordinances and present the same to the Presiding Officer for his signature (Section 469 [c (2) ], RA No. 7160; Article 122 [a (3) (ii)], IRR of RA No. 7160).
The Secretary to the Sanggunian shall forward to the LCE for approval, copies of ordinances enacted by the Sanggunian and duly certified by the Presiding Officer (Section 469 [c (3)], RA No. 7160; Article 122 [a (3) (iii)], IRR of RA No. 7160).
Further, Section 49 provides that the temporary Presiding Officer “shall certify within 10 days from the passage of the ordinance xxx.”
However, if the Presiding Officer refuses to sign, such refusal will not affect the validity of the Appropriation Ordinance duly passed by the Sanggunian since the Presiding Officer has no veto power. In such case, the Secretary to the Sanggunian may certify to the fact of the Presiding Officer‘s refusal to sign.
14. Can the Sanggunian withdraw the proposed Appropriation Ordinance which was already submitted to the LCE for approval?
There appears to be no legal provision in such a case. However, it may be assumed that the withdrawal of the proposed Appropriation Ordinance may not be allowed since the legislation process at such point has already been completed. Thus, the executive consideration of the proposed Appropriation Ordinance should take its course.
15. What amount may the LGUs appropriate in their annual/supplemental budgets (ABs/SBs) covering proceeds from loans? May the total amount of the loan as approved (but actually to be released in tranches) be considered as “funds actually available” or only those amounts that are released to and actually received by the LGU?
The total amount of the approved loan even if it would be received in tranches may be the subject of appropriations under the AB or SB.
Section 316 (b) of RA No. 7160 provides that the LFC shall recommend the appropriate tax and other revenue measures or borrowing which may be appropriated to support the budget.
Further, SB may be enacted when it is supported by new revenue sources pursuant to Section 321 of RA No. 7160. It may be gleaned from Article 417 of the IRR of the same law as amended by AO No. 47 that approved loans may be considered as a new revenue source when it has not been included in the estimate of income which served as basis for the AB or not taken into account during the preparation and enactment of the AB.
16. In the case of SBs, what amount will be certified as actually available by the local treasurer and when is the fund considered actually available?
For SB supported by funds actually available as certified by the local treasurer, the amounts to be certified are only those actually collected at any given point during the fiscal year, which is over and above the estimated income collection for that point in the year. Further, funds are likewise deemed actually available when there are savings as defined under Article 417 of the IRR of RA No. 7160, as amended by AO No. 47.
17. If the amount to be appropriated will be based on the loan proceeds released to and actually received by the LGU, will the LGU have to conduct a separate procurement for every loan proceeds received, in view of the provisions of RA No. 9184 (The Government Procurement Reform Act)?
18. Whose signatures are required in the Appropriation Ordinance? Will the Appropriation Ordinance need the signature of all the members of the Sanggunian or only those who have voted in favor of its passage?
The minimum signatures required in an Appropriation Ordinance are those of the Secretary to the Sanggunian, the Presiding Officer, and the LCE.
The Internal Rules of Procedure of the Sanggunian may, however, provide additional requirements for signatures in the Appropriation Ordinance.
19. What are the disadvantages of a reenacted budget in case of failure of the Sanggunian to enact the annual appropriations?
Only the annual appropriations for salaries and wages of existing positions, statutory and contractual obligations, and essential operating expenses authorized in the annual and supplemental budgets for the preceding year shall be deemed reenacted and disbursement of funds shall be in accordance therewith (Section 323, RA No. 7160; Article 415, IRR of R. No. 7160).
Accordingly, a reenacted budget will have implied disadvantages, such as, but not limited to, the following:
- No creation of positions
- No new programs, projects and activities
- No utilization of the increase in IRA allocation for the year since the same is not covered by an Appropriation Ordinance
- Non-implementation of non-recurring activities no matter how vital they may be
- No supplemental appropriations
20. Is the appropriation for development projects of no less than twenty percent (20%) of the IRA included in the reenacted items?
No. Only the annual appropriations for salaries and wages of existing positions, statutory and contractual obligations, and essential operating expenses authorized in the annual and supplemental budgets for the preceding year shall be deemed reenacted and disbursement of funds shall be in accordance therewith (Section 323, RA No. 7160; Article 415, IRR of RA No. 7160).
Accordingly, there can be no implementation of new projects under a reenacted budget.
21. Section 53 of the LGC provides that, “A majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business.”
i. What comprises a “quorum,” and “majority” in the Sanggunian?
Answer i: Quorum is defined as that number of members of a body which, when legally assembled in their proper places, will enable the body to transact its proper business or that number which makes a lawful body and gives it power to pass upon a law or ordinance or do any valid act.4
In computing the quorum of the Sanggunian, the entire membership must be taken into account as Section 53 of the LGC requires that the majority of all members of the Sanggunian who have been elected and qualified shall constitute a quorum.5
Majority, when required to constitute a quorum, means the number greater than half or more than half of any total.
ii. Is the Presiding Officer included in the determination of the entire membership of the Sanggunian for purposes of computing the quorum? Can the Presiding Officer vote?
Answer ii: The vice LCEs are also included in the determination of the entire membership of the sanggunian as the LGC clearly provides that the respective sanggunians shall be composed of the vice-mayor or vice-governor as Presiding Officer. As Presiding Officer, the vice-mayor or vice-governor can vote only to break a tie. In effect, the Presiding Officer votes when it matters the most, that is, to break a deadlock in the votes. Clearly, as presiding officer, the vice-mayor or vice-governor is a member of the Sanggunian considering that he is mandated under the LGC to vote to break a tie. To construe otherwise would create an anomalous and absurd situation where the Presiding Officer who votes to break a tie during a Sanggunian session is not considered a member of the Sanggunian.6
iii. What constitutes simple majority and qualified majority?
Answer iii: Generally, ordinary measures require for its enactment only the approval of a simple majority of the sanggunian members present, there being a quorum. These pertain to the normal transactions of the sanggunian which are approved by the sanggunian through a vote of simple majority of those present. On the other hand, there are certain measures where the LGC requires for its approval the vote of majority of all the members who were duly elected and qualified. This is called approval by the qualified majority of the sanggunian. In this case, the approval is to be voted not just by the majority of those present in a session there being a quorum but by the majority of all the members of the sanggunian duly elected and qualified regardless of whether all of them were present or not in a particular session.7
22. Can the Sanggunian validly appropriate for some projects under the Office of the Sanggunian?
As a general rule, projects should be appropriated in the proper offices under the executive department as it is the LCE who is primarily vested with the responsibility for the execution of local budgets and the accountability therefor.
On the other hand, the functions of the Sanggunian is primarily legislative in nature, thus, they are not tasked to execute budgets or implement projects. However, appropriations for projects for the Office of the Sanggunian (e.g., construction of building) may be provided under the said Office.