Gloria Lastimoa v.

Ombudsman Vasquez, Deputy Ombudsman Mojica, Asst Prov Prosec Lastimosa, Sec of Justice Drilon, and Undersec Liwag (1995) Mendoza, J. Facts:

Jessica Dayon is a public nurse in Cebu. She filed a criminal complaint (frustrated rape) and an administrative complaint (immoral acts, abuse of authority, grave misconduct) against the Municipal Mayor, Ilustrisimo. The cases were filed with the Office of the Ombudsman-Visayas. The graft investigation officer assigned found no prima facie evidence and recommended dismissal but when Ombudsman Vasquez reviewed this, he directed that Mayor Ilustrisimo be charged with attempted rape in the RTC. The case was assigned to 1st Asst Provincial Prosecutor Lastimosa. Lastimosa conducted a prelim investigation and found only acts of lasciviousness and filed said charge with the MTC. Despite repeated demands, Lastimosa refused to file an info for attempted rape bec she insists that it is only acts of lasciviousness. Bec of this, Deputy Ombudsman Mojica ordered the Prov Prosec Kintanar and Asst Prov Prosec Lastimosa to show cause why they should not be punished for contempt for "refusing to obey the lawful directives" of the Office of the Ombudsman. Hearing was set on Aug 1. But before Aug 1 (July 22) 2 cases were already filed against them by a resident of Cebu (one administrative, the other criminal) based on the alleged refusal to obey the orders of the Ombudsman. In the admin case, the Deputy Ombudsman placed them under a 6 month preventive suspension. In this case, they question this suspension. Defense of Asst Prov Prosec Lastimosa: o The Ombudsmans and the prosecutor's office have concurrent authority to investigate public officers/employees. When the Office of the Ombudsman took cognizance of the case, it did so to the exclusion of the Prosec Office. It then became the duty of the Ombudsman's office to finish the prelim investigation by filing the information in court instead of asking the Provincial Prosecutors Office to do so. o She defends her act (of conducting a prelim investigation) as made necessary by the insistence of the Ombudsman to delegate the filing of the case to her office. o Also, she says the Office of the Ombudsman has no jurisdiction over the case because the crime involved was not committed in relation to a public office. Thus, they have no authority to place them under suspension.

Issue: Does the Office of the Ombudsman have the power to call on the Prov Prosec to assist it in the prosecution of the case for attempted rape against Mayor Ilustrisimo? Held: Yes Ratio: The Office of the Ombudsman has the power to investigate and prosecute and call on prosecutors for assistance: The office of the Ombudsman has the power to "investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such appears to be illegal, unjust, improper or inefficient." o Power includes the investigation and prosecution of any crime committed by a public official regardless of whether those are related to the performance of official duty o It is enough that it was committed by a public official. The Ombudsman is authorized to call on prosecutors for assistance as provided by the Ombudsman Act of 1989 (RA 6770) Sec 31: o The Ombudsman may utilize the personnel of his office or designate any fiscal, state prosecutor, or lawyer in the govt service to act as special investigator or prosecutor to assist in the investigation and prosecution of cases. o Those designated to assist him shall be under his supervision and control. Even if the prelim investigation was given to the Prov Prosecutor to conduct, his determination of the offense to be charged would still be subject to the approval of the Office of the Ombudsman because under Sec 31 of the Ombudsman's Act, when a prosecutor is deputized, he comes under the "supervision and control" of the Ombudsman. Supervision and control: to direct, review, approve, reverse or modify his (prosecutor's) decision. o Lastimosa cannot legally act on her own and refuse to file the information as directed by the Ombudsman. The Office of the Ombudsman has the power to punish for contempt: Sec 15 of the Act gives the Office of the Ombudsman the power to punish for contempt. There is no merit in the argument that they cannot be held for contempt. The prelim investigation of a case, of which the filing of an information is a part, is quasi judicial in character. The Office of the Ombudsman has the power to discipline and to place them under preventive suspension: If it be found that she is guilty of grave misconduct, insubordination, neglect of duty Sec 21 states that it has disciplinary authority over elective and appointive officials of the govt and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary Sec 22 states that it may suspend those under his authority pending an investigation, if the evidence of guilt is strong, and (a) the charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the the continued stay in office may prejudice the case against him.

Buenaseda v. Flavier: It is left to the determination of the Ombudsman by taking into account the evidence before him whether the evidence of guilt is strong. (In this case, the Deputy Ombudsman Mojica had personal knowledge of the facts justifying the preventive suspension bec the acts were done in the course of their official transaction with the Office of the Ombudsman)

Lastimosa argues that the suspension is invalid because there was no prior notice and hearing to refute the charges: Prior notice and hearing is a not required bec it is a penalty. It is only a preliminary step in an administrative investigation. Regalado, J. concurs: The Civil Service Decree allows a max preventive suspension of 90 days. However, in the Ombudsman Act, there is the added requirement that the evidence of guilt is strong and that "the respondent's continued stay in office may prejudice the case filed against him." In the Civil Service Decree, preventive suspension may be imposed on the mere simple showing that the charge involves dishonesty or if there are reasons to believe that the respondent is guilty but in the Ombudsman Act, it is required that charges be supported by strong evidence of guilt in order to justify preventive suspension. In the Local Govt Code, the period of 60 days max for preventive suspension of local elective officials is justifiable because the respondent involved is elected by the people and because such suspension may only be ordered "after the issues are joined." Meaning, before the suspension, all the preliminary requirements have to be completed and the respondent already filed his counter-affidavits. o These preliminary steps are included in the case of the period of preventive suspension ordered so by some dilatory tactics, the respondent still occupies his office and could prejudice the case against him. The longer period of 6 months preventive suspension in the Ombudman Act was induced by a desire to meaningfully the authority of the Office of the Ombudsman over public officials/employees in order to serve as a deterrent to illegal, unjust, improper, and inefficient conduct. As the agency mandated by the Consti to undertake this task of determent, it was invested with the authority to enable it to perform its mission. Also, it is the only body authorized to investigate even officials removable by impeachment.