Prosecute all involved government officials first

Or better still, simultaneously. If the president is now serious in unearthing corruption in the flood control projects, he should fire the DPWH secretary on the principle of command responsibility. The Ombudsman should act immediately. Instead of focusing on contractors only, like QM Builders, why not investigate immediately all public officials who use contractors to steal public funds. Include prosecutors and judges who acquit the guilty for malice or money.

This includes congressmen, governors, mayors, regional directors, district engineers, undersecretaries and assistant secretaries, resident COA auditors, members of the Bids and Awards Committees, and all those who have a say in the approval of the projects, supervision and control in the implementation, oversight functions in the project execution, certification of completion of said public works, release of funds and audit of all financial transactions. Congressmen who inserted pork barrel into the national budget should be exposed and prosecuted.

I’m running a series of research, together with Law students on Supreme Court convictions and this will serve as a warning to all contractors who have had flood control and other public works projects. I will start with a very simple case, Philippines v. RBA, an assistant bureau director of DPWH involved in the procurement of heavy equipment, GR 188909, decided by the Supreme Court September 17, 2014. He was found guilty by anti-graft investigators but got an exoneration from the Court of Appeals. Here, the SC reversed the appellate court and fired him.

The investigators, affirmed by the SC, found him guilty of grave misconduct, gross negligence and conduct prejudicial to the best interest of the service. The SC reminded all public officials of the meaning of dishonesty, defined as intentionally making a false statement in any material fact, or practicing or attempting to practice any deception or fraud in the performance of official functions. Dishonesty is understood to imply a disposition to lie, cheat, deceive or defraud. Many contractors and DPWH officials who managed the flood control projects may be charged and found guilty of gross dishonesty.

Many public works officials may not be dishonest but are grossly negligent again for money or malice. The SC defined gross neglect of duty or gross negligence as a total lack of even a slight care, acting or omitting to act in a situation where there’s a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences. It’s the absence or omission of that care which even inattentive and thoughtless persons never fail to take on in the specific circumstances. In cases of public officials, there’s gross negligence when a breach of duty is flagrant and palpable.

In this connection, resident COA auditors who close their eyes or look the other way, again for malice or money, despite irregularity in the project implementation or in the procurement process, are also liable for gross negligence or even corruption or serious misconduct. In that case involving the DPWH assistant director, the SC defined misconduct as an intentional wrongdoing or deliberate violation of a rule of law or standard of behavior by a government official. Based on this definition, the scoundrels and rascals who committed graft in the handling of flood control public works should be fired and put in prison for life.

As distinguished from simple misconduct, in grave misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of established rule must be manifest and palpable. In GR 188909, the SC concluded that the Court of Appeals gravely abused its discretion in exonerating him. Evidence showed that he intentionally failed to exercise due diligence when he recommended for approval certain procurement documents for emergency repair absent the signature and certification of the end-user, and as a consequence, caused damage to the government.

The SC ordered his dismissal from the service with accessory penalties because he totally disregarded existing DPWH rules, which was tantamount to gross neglect of duty and grave misconduct causing loss of public funds and undue injury to the government. The penalty imposed was dismissal from the service, with forfeiture of retirement benefits and perpetual disqualification from re-employment in government service. My take on this is: fire the DPWH secretary for command responsibility and fire the resident COA auditor who did not issue a notice of disallowance.

This is only the administrative penalty. That director and all his co-conspirators should be prosecuted and sent to jail for the rest of their lives.