EN BANC

June 6, 2017

A.M. No. mtj-16-1870

RE: ANONYMOUS LETTER COMPLAINT, Complainant

DECISION

PERALTA, J.:

This is an administrative complaint against respondent Judge Divina T. Samson of the Municipal
Circuit Trial Court (MCTC) of Mabini-Pantukan, Compostela Valley for misconduct and against
respondent Francisco M. Roque, Jr., a utility worker in the court of respondent Judge Samson, for
dishonesty and falsification.

The facts are as follows:

On July 11, 2013, the Office of the Court Administrator (OCA) received an anonymous letter-
complaint charging respondent Judge Divina T. Samson with misconduct for hiring co-respondent
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Francisco M. Roque, Jr. as Utility Worker I in her court despite knowing that respondent Roque was
convicted in Criminal Case No. 13388 for illegal possession of explosives, as she was the public
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prosecutor who handled the case, and for knowingly abetting the concealment of such fact, which
led to Roque's appointment in the Judiciary. The complaint also charged respondent Roque with
dishonesty and falsification for the untruthful entries he made in his Personal Data Sheet, particularly
that he had not been formally charged and convicted of an offense.

Respondent Roque was convicted of the crime of illegal possession of explosives in Criminal Case
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No. 13388 by the Regional Trial Court (RTC) ofTagum City, Branch 1, Davao del Norte in an Order
issued on June 1, 2005. Respondent Roque was sentenced to suffer an indeterminate penalty of six
months of arresto mayor, as minimum, to three years, six months and twenty days of prision
correccional, as maximum, including all the accessory penalties provided by law. Respondent
Roque immediately applied for probation, which was granted by the RTC of Tagum City, Branch 1 in
an Order dated July 25, 2005. Upon the motion of Lily Anne B. Cabonce, Probation and Parole
Officer II of Davao City, respondent Roque was discharged from his probation by Executive Judge
Isaac G. Robillo, Jr. of the RTC of Davao on July 18, 2008.

Respondent Roque applied for the position of Utility Worker I in the court of respondent Judge
Samson. Despite having been convicted of the crime of illegal possession of explosives, in his
Personal Data Sheet dated June 12, 2008, Roque answered "No" to these questions:

37.a. Have you ever been formally charged?

38. Have you ever been convicted of any crime or violation of any law, decree, ordinance or
regulation by any court or tribunal?
Respondent Judge Samson, who knew of respondent Roque's conviction of the crime of illegal
possession of explosives, as she was the public prosecutor who handled his case, favorably
recommended respondent Roque for the position of Utility Worker I in her court even if she knew
that he was not yet discharged from probation at that time. Respondent Roque was appointed to the
position on October 17, 2008 and started working as Utility Worker on the said date.

The complainant alleged that the position of Clerk II in the trial court remains vacant despite the
availability of several qualified applicants for the reason that respondent Judge Samson is reserving
it for someone else, presumably respondent Roque. Moreover, an employee named Janet G. dela
Cruz allegedly continues to hold the position of Court Stenographer I despite her incompetence and
lack of knowledge about the job.

Further, the complainant alleged that respondent Judge Samson has been tolerating the daily
presence in her sala of her 62-year-old sister Rachel Tabanyag-Verzola, who wears the court
uniform although she is not a court employee. Complainant said that Verzola is like a fixer/swindler
and she entertains litigants, including those who wish to be wed by respondent Judge Samson.

In her Comment, respondent Judge Samson admitted that she knew that respondent Roque was
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convicted of the crime of illegal possession of explosives. However, she countered that the hiring of
respondent Roque as Utility Worker I was not irregular, but proper, because he was already
discharged after having served his probation. She inquired from Edgar Perez and Florida Ayaso,
both from the Probation and Parole Office of Davao del Norte, as to the propriety of respondent
Roque's application and, likewise, sought the recommendation of then Executive Judge Hilarion
Clapiz, Jr. on the matter. They all assured her that a final discharge of a probation restores all civil
rights lost or suspended as a result of the conviction.

Respondent Judge Samson dismissed as preposterous the insinuation that she was reserving the
position of Clerk II for respondent Roque, since he is only a high school graduate and not qualified
for the position requiring civil service eligibility and two years of college education.

Respondent Judge Samson did not address the allegation that she had been tolerating the presence
in her sala of her older sister Rachel Verzola, who allegedly wears the official uniform even if she is
not a court employee. However, she dismissed the charge that Verzola was a fixer/swindler as
malicious. She challenged the complainant to come up with evidence of fixing or swindling and file
the charge in court, and she will step down from her position if the charge is proved. She suspected
that the anonymous complainant was Nelda Britanico, a court stenographer in her sala, who
allegedly has a penchant for filing anonymous complaints to conceal her inefficiency and
incompetency at work.

Respondent Judge Samson prayed that the complaint be dismissed for lack of cause of action.

In his Affidavit dated October 23, 2013, respondent Roque admitted that he was convicted in
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Criminal Case No. 13388. He said that he was a probationer from June 2005 to July 2008. He was
discharged from probation on July 18, 2008 by virtue of an Order issued on the same date by then
Executive Judge Isaac G. Robillo, Jr. of the RTC of Davao City.

Respondent Roque stated that during his probation, he attended several seminars and open forum
where he asked Probation Officer Lily Anne Cabonce if probationers could be employed or travel
abroad after having been discharged by the court. Cabonce replied in the affirmative and assured
him that his discharge from probation would restore his civil rights and his probation record would be
considered confidential and would not be opened to the public except upon court order.
Respondent Roque said that he learned about the vacant position of Utility Worker I at the MCTC of
Mabini-Pantukan, Compostela Valley, so he applied for the said position in order to support himself
and his son. When he applied for the position, respondent Judge Samson told him that she would
refer his case first to the Provincial Probation Officer Edgar Perez. Respondent Roque averred that
his application was made in good faith and based on the assurance of his probation officer and the
favorable result of the referral of his application by respondent Judge Samson to the Probation
Office. Further, respondent Roque said that when he applied for clearance from the National Bureau
of Investigation (NBI), his conviction and probation were not indicated in his NBI clearance.

This administrative case raises these issues:

(1) Whether or not respondent Roque is liable for dishonesty and falsification for failing to disclose in
his Personal Data Sheet that he was charged of a criminal offense and convicted of the crime
charged.

(2) Whether or not respondent Judge Samson is liable for violation of the Code of Judicial Conduct
for her complicity in the appointment of respondent Roque to the judiciary despite knowing that he
was not yet discharged from probation when he applied for the position of Utility Worker I in her
court.

On February 15, 2016, the OCA submitted a Report and recommended that this complaint be re-
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docketed as a regular administrative matter. It found respondent Roque guilty of dishonesty and
falsification of his Personal Data Sheet and recommended his dismissal from the government
service, while it found respondent Judge Samson guilty of misconduct and recommended that she
be fined in the amount of ₱20,000.00. Moreover, the OCA found that the other allegations against
respondent Judge Samson on appointing an underqualified employee, Janet de la Cruz, and
allowing her sister Rachel Versola to be a fixer in her court to be unsubstantiated with substantial
evidence.

The Court agrees with the findings of the OCA, but modifies the recommended penalties to be
imposed.

In regard to respondent Roque, Executive Judge Isaac G. Robillo, Jr. of the RTC of Davao City
issued an Order discharging him from probation on July 18, 2008. However, the records show that
respondent Roque applied for the position of Utility Worker I in June and accomplished his Personal
Data Sheet on June 12, 2008 before he was discharged from probation. It is clear that when
respondent Roque applied for the position of Utility Worker I, he was still a probationer.

However, the fact that respondent Roque was still a probationer when he applied for the position of
Utility Worker and accomplished his Personal Data Sheet did not disqualify him from applying for the
position. In Moreno v. Commission on Elections, the Court clarified that the grant of probation
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suspends the imposition of the principal penalty of imprisonment as well as the accessory penalties
of suspension from public office and from the right to follow a profession or calling, and that of
perpetual special disqualification from the right of suffrage. It held:

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a
sentence but is rather, in effect, a .suspension of the imposition of sentence. We held that the grant
of probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well
as the accessory penalties of suspension from public office and from the right to follow a profession
or calling, and that of perpetual special disqualification from the right of suffrage. We thus deleted
from the order granting probation the paragraph which required that petitioner refrain from continuing
with her teaching profession.
Applying this doctrine to the instant case, the accessory penalties of suspension from public office,
from the right to follow a profession or calling, and that of perpetual special disqualification from the
right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prision
correccional in its minimum period imposed upon Moreno were similarly suspended upon the grant
of probation.

It appears then that during the period of probation, the probationer is not even disqualified from
running for a public office because the accessory penalty of suspension from public office is put on
hold for the duration of the probation.

Clearly, the period within which a person is under probation cannot be equated with service of the
sentence adjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation
suspends the execution of the sentence. During the period of probation, the probationer does not
serve the penalty imposed upon him by the court but is merely required to comply with all the
conditions prescribed in the probation order. 8

From the foregoing jurisprudence, it is clear that when respondent Roque was granted probation, not
only was the imposition of the principal penalty of imprisonment suspended, but the accessory
penalty of suspension from the right to follow a profession or calling was also suspended. Hence,
respondent Roque retained the right to seek employment and was, therefore, not disqualified to
apply for the position of utility worker in the court when he was still a probationer. However,
respondent Roque had the obligation to disclose the fact that he had been formally charged and
convicted of an offense in his Personal Data Sheet and cannot justify his non-disclosure of such fact
by invoking the confidentiality of his records under the Probation Law.

Under Section 17 of the Probation Law, the confidentiality of records of a probationer refers to the
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investigation report and supervision history of a probationer taken under the said law, which records
shall not be disclosed to anyone other than the Probation Administration or the court concerned.
However, the Probation Administration and the court concerned have the discretion to allow
disclosure of the confidential records to specific persons and the government office/agency stated in
the Probation Law. The confidentiality of the said records is different from respondent Roque's
obligation to answer truthfully the questions in his Personal Data Sheet, as the accomplishment of
the Personal Data Sheet is a requirement under the Civil Service Rules and Regulations in
connection with employment in the government. The Personal Data Sheet is the repository of all
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information about any government employee and official regarding his personal background,
qualification, and eligibility. Respondent Roque, therefore, had the obligation to reveal the fact that
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he had been formally charged and convicted of a criminal offense to enable the Selection and
Promotion Board for Lower Courts to correctly determine his qualification for the position applied for.
The Office of the Court Administrator aptly stated that by respondent Roque's false statement in his
Personal Data Sheet making it appear that he had a spotless record, he gained unwarranted
advantage over other qualified individuals, especially that he was also recommended by respondent
Judge Samson for the position.

The falsification in respondent Roque's Personal Data Sheet is a dishonest act related to his
employment. Dishonesty is the concealment or distortion of truth, which shows lack of integrity or a
disposition to defraud, cheat, deceive or betray and an intention to violate the truth. 12

CSC Resolution No. 06-0538 provides the rules on classifying the offense of Dishonesty and the
proper penalty to be imposed based on the factual circumstances of the case. The pertinent
provisions of Resolution No. 060538 are as follows:
Section 2. Classification of Dishonesty-The classification of the offense of Dishonesty and their
correspondent penalties are as follows:

a. Serious Dishonesty punishable by dismissal from the service.

b. Less Serious Dishonesty punishable by suspension from six (6) months and one (1) day to
one (1) year for the first offense and dismissal from the service for the second offense.

c. Simple Dishonesty punishable by suspension of one (1) month and one (1) day to six (6)
months for the first offense; six (6) months and one (1) day to one (1) year suspension for
the second offense; and dismissal from the ser1ice for the third offense.

Section 3. Serious Dishonesty -- The presence of any one of the following attendant circumstances
in the commission of the dishonest act would constitute the offense of Serious Dishonesty:

a. The dishonest act caused serious damage and grave prejudice to the Government;

b. The respondent gravely abused his authority in order to commit the dishonest act;

c. Where the respondent is an accountable officer, the dishonest act directly involves
property, accountable forms or money for which he is directly accountable and the
respondent shows an intent to commit material gain, graft and corruption;

d. The dishonest act exhibits moral depravity on the part of the respondent;

e. The respondent employed fraud and/or falsification of official documents in the

f. The dishonest act was committed several times or in various occasions;

g. The dishonest act involves a Civil Service examination irregularity or fake Civil Service
eligibility such as, but not limited to impersonation, cheating and use of crib sheets;

h. Other analogous circumstances.

The falsification in respondent Roque's Personal Data Sheet is a dishonest act related to his
employment. Dishonesty is the concealment or distortion of truth, which shows lack of integrity or a
disposition to defraud, cheat, deceive or betray and an intention to violate the truth.

As the Court has stated in the recent case of Alfornon v. Delos Santos, we do not automatically
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dismiss dishonest government employees; rather, their penalty would depend on the gravity of their
dishonesty. Rule IV, Section 53 of the Civil Service Rules provides mitigating circumstances, among
others, that may be allowed to modify the penalty, such as length of service in the government, good
faith, and other analogous circumstances. Jurisprudence is replete with cases where we lowered
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the penalty of dismissal to suspension taking into account the presence of mitigating
circumstances. Office of the Court Administrator v. Aguilar enumerated cases wherein the
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Court reduced the administrative penalties imposed for equitable and humanitarian reasons.

In Alfornon v. Delos Santos, the petitioner therein, when she became a permanent employee as
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Administrative Aide IV in the Municipality of Argao, Cebu, answered "No" to the question in her PDS
about whether she had ever been formally charged despite the fact that she was previously charged
with the crime of estafa in the RTC ofLapu-Lapu City, Cebu before she was employed in the
government. The Court held that while the falsification in Alfomon's PDS can be considered as a
dishonest act related to her employment, it found that suspension was the more proportionate
penalty for her dishonesty. The Court considered Alfomon's continued service to the Municipality of
Argao, Cebu since 2003, among others, in holding that she only deserved to be suspended for six 6
months, as her outright dismissal from the service would be too harsh.

In In the Matter of: Anonymous Complaint for Dishonesty, Grave Misconduct and Perjury Committed
by Judge Jaime E. Contreras (Jn His Capacity as then 4th Provincial Prosecutor of Libmanan, Ca-
marines Sur), respondent judge, in his application for a position in the Judiciary, failed to disclose
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in his Personal Data Sheet that a previous administrative case was filed against him when he was
the 4th Assistant Provincial Prosecutor of Libmanan, Camarines Sur. The Court found him guilty of
dishonesty and penalized him with suspension from the service for one year without pay, taking into
account that he had been in the government service for more than 30 years and it was his first
offense as a member of the bench.

In Office of the Court Administrator v. Flores, the respondent therein, who was a Court Legal
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Researcher II in the RTC of Quezon City, was charged with dishonesty for failure to disclose in her
Personal Data Sheet her suspension and dismissal from her previous employment. The Court
imposed the penalty of suspension for six months without pay, considering that respondent had
been in the government service for 14 years and it was her first offense during her employment in
the Judiciary.

In Advincula v. Dicen, the petitioner therein, who was the Provincial Agriculturist in Samar,
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declared in his Personal Data Sheet that there were no pending administrative and criminal cases
against him and that he had not been convicted of any administrative offense, although there were
pending criminal and administrative cases against him, and he had already been convicted of the
administrative offense of simple misconduct. The Court affirmed the Decision and Resolution of the
Court of Appeals affirming the Decision of the Office of the Ombudsman-Visayas that petitioner was
guilty of misconduct and penalized with suspension from office for six months without pay.

In Yalung v. Pascua, respondent judge, in his application for promotion, misrepresented in his
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PDS that he had never been charged with violating any law, decree, ordinance or regulation despite
the fact that two administrative cases and one criminal case had been filed against him, although
these cases were later dismissed. The Court penalized him with suspension ·for six months, taking
into consideration that he had been in the government service for 26 years and that he had no prior
administrative record as the cases against him were eventually dismissed.

In the instant case of respondent Roque, the penalty of suspension for six months without pay is
proper, considering that he was already discharged from probation on July 18, 2008 when he was
appointed to the position of Utility Worker I on October 17, 2008, or he was appointed to the position
almost three months after his discharge from probation, and he has been in the government service
for almost nine years as a reformed member of society. We take the benevolent stance to give him a
chance to serve in the government, as this is his first offense as an employee in the Judiciary.

As regards respondent Judge Samson, she contends that respondent Roque applied for the position
of Utility Worker in her court after his discharge from probation, but the records show that
respondent Roque accomplished his Personal Data Sheet on June 12, 2008 or more than a
month before he was discharged from probation on July 18, 2008. When respondent Roque applied
for the position of Utility Worker I in her court, respondent Judge Samson knew that he was not yet
discharged from probation and yet she recommended respondent Roque for the position in a
recommendation letter dated June 3, 2008, which forms part of the employment record of
respondent Roque in the Court. As the Presiding Judge of the Court, respondent Judge Samson
should have been circumspect and waited for the final discharge of respondent Roque before she
entertained his application and gave him her favorable recommendation, as it is only upon the final
discharge of respondent Roque from probation that his case is deemed terminated and all his civil
rights lost or suspended are restored. 23 Her act violates Canon 2 of the Code of Judicial Conduct,
thus:

CANON 2 - A JUDGE SHOULD A VOID IMPROPRIETY AND APPEARANCE OF IMPROPRIETY IN

Rule 2.01 --A judge should so behave at all times as to promote public confidence in the integrity
and impartiality of the judiciary.

xxxx

Rule 2.03 - A judge shall not allow family, social, or other relationships to influence judicial conduct
or judgment. The prestige of judicial office shall not be used or lent to advance the private interests
of others, nor convey or permit others to convey the impression that they are in a special position to
influence the judge.

Under Rule 140 of the Rules of Court, gross misconduct constituting violations of the Code of
Conduct is a serious charge which may be sanctioned by: (1) Dismissal from the service, forfeiture
of all or part of the benefits as the Court may determine, and disqualification from reinstatement or
appointment to any public office, including government-owned or controlled corporations; Provided,
however, that the forfeiture of benefits shall in no case include accrued leave credits; (2) suspension
from office without salary and other benefits for more than three (3) but not exceeding six (6)
months; or (3) a fine of more than ₱20,000.00 but not exceeding ₱40,000.00.

WHEREFORE, the Court finds respondent Judge Divina T. Samson guilty of gross misconduct and
imposes on her a fine in the amount of Twentyfive Thousand Pesos (₱25,000.00), while the Court
finds respondent Francisco M. Roque, Jr. guilty of Serious Dishonesty and imposes on him the
penalty of suspension for six (6) months without pay, with a stem warning that the commission of a
similar offense shall be dealt with more severely.

SO ORDERED

DIOSDADO M. PERALTA
Associate Justice