STARTING A LAW FIRM How Much it Really Costs to Start a Law Firm by SAM GLOVER on JUNE 22, 2012

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A few years ago, I wrote a post I titled Start a Solo Law Practice for Under $3,000. Boy, do I regret that title. Starting a law firm is a relatively inexpensive endeavor, but picking an arbitrary number and trying to stick to it is wrong-headed. I’ve met plenty of lawyers who have done just that, and many of them have struggled to keep their practices afloat — or failed — as a result.

Don’t let that happen to you.

It really doesn’t need to cost a lot to start a law firm. In theory, all you really need is access to a computer, a printer, and a law library. In reality, there are a few more things you’ll need. And if you don’t plan accordingly, you are going to run into expenses you didn’t expect, probably at the least-opportune moment.

When you set an unrealistic upper limit to your spending, though, you set yourself up for failure. This is especially true if, like many new lawyers, you are starting a law firm out of desperation, not because it is what you really want to do. When you are struggling to pay the bills every month, it becomes easier to rationalize bad decisions, like taking a red-flag client or dipping into your trust account to help you float some checks.

When it comes to outfitting a law practice, it doesn’t pay to pinch pennies. Figure out what you need, then figure out how to pay for it. If you can’t get what you need, don’t start a practice.

So what do you need?

The practical minimum

As a practical matter, you’ll need a bit more than I listed in my post. While it is theoretically possible to meet with clients at coffee shops, draft briefs on the display models at an Apple store, and do research at the law library, you won’t be doing your clients or yourself any favors.

Here’s what I consider the practical minimum:

Office & supplies

• Office
• Furniture
• Office supplies

A serious lawyer needs an office. You need a place to meet with clients, first of all, and the best place to meet with clients is your office. It really does make a difference, both to your clients and your productivity, to meet at your office instead of at a coffee shop. Sharing space with other lawyers can be a great way to have mentors on hand, or at least sounding boards. Officemates often make reliable referral sources, too. And an office is usually relatively free of distractions, at least compared to your couch or a coffee shop.

There are a lot of options, here, from a spare bedroom or basement corner to an office presence options to actually renting your own space. It’s okay to start out working from home, but unless you have a solid plan for running a virtual law practice, you should plan to rent a real office 6–12 months after you launch your practice.

While I strongly recommend getting an office, it is true that plenty of good, successful lawyers work from home. In order to decide what will work best for you, I suggest you spend some time meeting with lawyers who work at home, at an office, and everything in between.

With an office, you’ll obviously need some furniture. Don’t get crap. If I had to guess, I’d say 9 out of 10 solos have no design sense and no business shopping for their own furniture or decorating their own offices.

You don’t need to hire an interior designer — although it wouldn’t hurt — just find someone with decent style to help you pick out some professional-looking furniture and decorate your office. You don’t need to spend a fortune; just set a budget and get some furniture that makes you look good.

Finally, you will need some office supplies, like manila folders and paperclips. Buy what you need. (Oh, and if you litigate, track down some exhibit labels before you need them.)

Professional expenses

• Licensing
• Continuing legal education
• Malpractice insurance
• Memberships

Licensing is not optional. Neither is continuing legal education, whether or not your state requires it. Budget for these expenses.

Some lawyers decide to go without malpractice insurance. I don’t recommend it. It is a lot easier to sleep at night knowing that, if you do screw something up, you will be covered. Don’t simply get the cheapest insurance, either. If you can, ask around to find out whether the insurer can be trusted to actually help you when you need it.

When you settle on your practice area, if you haven’t already, you should budget for membership in an organization (or two) that serve your niche. You should also budget for at least one conference each year. Conferences are often valuable sources of substantive knowledge, strategy, and inspiration.

Hardware

• Computer
• Backup drive
• Document scanner
• Printer
• Phone

For your basic hardware and software needs, my New Solo Technology Shopping List: the Basics is a good starter guide, but I’ll reiterate here.

Get a good computer. It’s hard to go wrong with Apple, Lenovo, or Dell, for laptops or desktops. (For Lenovo and Dell, stick to the business lines, not the consumer lines.) Laptops are much more versatile, obviously, but the choice between laptop and desktop is down to personal choice and how you like to work. My top recommendation is a 13″ Macbook Air and an external monitor.

External hard drives make for easy (and cheap) backup. Get one. The Western Digital WD Elements drives are cheap and reliable. If you have a Mac, it’s hard to beat a Time Capsulefor wireless backup. Or you could get an ioSafe for near-indestructible backup.

A decade ago, you would get a copier. Now, you are much better off with a document scanner and printer. For a scanner, I still recommend the Fujitsu ScanSnap S1500. Nothing else comes close to its simple ease of use. For a printer, any workgroup laser printer will do. I generally stick with HP LaserJet printers, because they print well and last forever.

You have a lot of options for a phone these days. Many solos just use their mobile phone. That works, but I think it is a better idea to get a separate phone number for your firm. A separate number means you can easily direct it to a receptionist, if you ever need to, or sell it with your practice, if you want to.

To get a phone number, you can obviously go through the phone company, but Google Voice, Skype, Vonage, and Ring Central are all good, popular alternatives that offer increased functionality.

Software & services

• Email
• Calendar
• Document creation
• Remote backup service
• Accounting software
• Timekeeping and billing software
• Legal research
• Internet

For email and calendar, the Google Apps suite is still best, and for $50 per year, a bargain. If you want to use Microsoft Outlook, go ahead; Google Apps Sync plugs right in. Microsoft Office 365 also looks like a good option for Windows users.

While Microsoft Office remains the standard for creating and editing documents, there are other options, including Apple iWork, WordPerfect, LibreOffice, Google Drive, and Office 365. If you regularly need to share editable documents with others, then get Microsoft Office. Nothing else will be fully compatible, so you might as well get what nearly everyone uses. If you don’t anticipate sharing documents very often, get what you like.

Backing up to an external hard drive is not enough, especially if you are paperless to any degree. You should have at least two redundant backups in at least two different locations. If your office burns down (with your computer and backup drive in it), you will need a backup to your backup. Fortunately, remote backup is simple, secure, and cheap. Right now, you can’t beat CrashPlan for all three.

Neither accounting software nor timekeeping and billing software are strictly must-have. However, keeping your books on paper and doing your timekeeping and billing with spreadsheets is incredibly time-consuming, and often prone to error.

For accounting software, just get QuickBooks Pro. All bookkeepers and accountants are comfortable with QuickBooks, and it is solid software.

For timekeeping and billing, I haven’t found anything better than Freshbooks. It is easy to use, and nearly makes timekeeping and billing pleasant. Plus, it will grow (to a point) with your firm, if you do grow.

You don’t have to pay a lot for legal research. Most law libraries include Lexis or WestLaw access with membership. Many bar associations include Fastcase for free. There is alsoGoogle Scholar. What you need depends on your practice. If you do a lot of litigation in different practice areas, you probably want a premium service. If you have a narrow practice and you have good, frequently-updated treatises on hand, you might be fine with Google Scholar. Get what you think you need, here, but beward of the long-term contracts Lexis and WestLaw usually demand.

Finally, you obviously need an internet connection. Get a good, fast one, especially if any of your software is cloud-based.

Marketing

• Networking
• Website
• Advertising

Budget for marketing. At a minimum, plan to be social. Give yourself a breakfast/coffee/lunch/happy hour budget, and spend a lot of time doing those things with people (i.e., networking).

Get a website — a good one. Don’t worry about search engine optimization, apart from making sure your website shows up when you search for your name. It’s more important for your website to (1) be good-looking, (2) have your contact information, and (3) have a good picture of you on it. Like your office decor, don’t do this yourself. Hire someone competent.

Finally, you might want to jump-start your practice by advertising. If you do decide to advertise, Google AdWords is probably the most cost-effective way to do it. It is easy to get started with AdWords, and you can control your costs.

There are a lot of other things you can do to market your firm. Budget accordingly.

It is going to cost more than $3,000 to start a law practice

I haven’t added up everything I just listed, but I am confident that it adds up to more than $3,000. I’m equally confident that this is not all you will need (or want) as you get your practice off the ground.

In order to represent clients and run a business, you have to have some things, and those things cost money. The amount of money they cost is not important. If you need them, you need them. You just don’t get to decide that, hey, legal research is too expensive, so you aren’t going to do any. Or elect not to buy filing supplies because a stack of loose paper is cheaper.

In my article, I acknowledged that $3,000 is a starting point. $5–15,000 is more realistic, but it will depend on location, practice area, and many other variables.

The bottom line is this: When you start a practice, you are going to spend a lot of money. Spending this money is not optional. You have to spend this money to do a good job, and if you don’t do a good job, you won’t make any money. So get what you need.

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JURIST - Paper Chase: UK court rules police cannot retain records of innocent people

JURIST - Paper Chase: UK court rules police cannot retain records of innocent people

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[JURIST] The UK High Court of Justice[official website] on Thursday ruled[Judgment, PDF] that retaining photographs and other materials of an innocent suspect should be prohibited. The two-judge panel in London's High Court held that the current policy of the Metropolitan Police Service(MET) [official website] unjustifiably interfered [Guardianreport] with an individual's right to respect for his private life guaranteed under article 8(1) of the European Convention on Human Rights [text, PDF]. The decision came in the ruling of two consolidated cases of RMC and FJ whose identities were not revealed. RMC had been arrested for suspicion of assaulting a community officer who stopped her for cycling on the footpath. The Crown Prosecution Service [official website] however, never pressed charges against her even after obtaining fingerprints, DNA and photographs from her. After the incident, RMC asked the MET to destroy the materials, but it refused. The second case of FJ involved a rape allegedly committed by FJ. The same records were obtained from the 12-year-old boy, but he was released after a third party witness did not confirm an offense taken place. FJ's request to destroy the records was also denied. Lord Justice Richards, sitting at London's High Court with Justice Kenneth Parker, noted that the unlawful policy should be changed within months, not years, with the exception that retention of such materials should be allowed so long as they are "necessary and proportionate to the purpose it serves." The Equality and Human Rights Commission [advocacy website] which intervened in the test case welcomed Thursday's decision.

In 2010, the UK was found to be in violation [JURIST report] of Article 8 of the European Convention on Human Rights when they stopped two individuals under theTerrorism Act 2000 [text]. In 2008, the European Court of Human Rights (ECHR) [official website] found [JURIST report] that Finland violated the same article for failing to provide a legal framework to protect the applicant's rights when his privacy was invaded by a personal ad with sexual connotations that was posted on the Internet without his knowledge.

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JURIST - Paper Chase: UN official: US drone strikes are potential war crimes

JURIST - Paper Chase: UN official: US drone strikes are potential war crimes

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[JURIST] The UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions [official profile] continued to criticize US drone strikes on Thursday, saying that in some cases the attacks may constitute war crimes. In addressing the20th Session [materials] of the UN Human Rights Council on Thursday, Christof Heyns said the drone strikes put innocent civilians at risk [UPI report] and set a dangerous international precedent. Heyns presented hisreport [text, PDF; JURIST report] to the council in Geneva on Tuesday, asking the US to clarify its policy of targeted killing of terrorism suspects through raids and unmanned drone strikes. He noted that the US government has failed in the past to provide a comprehensive explanation of its drone-attack policy, including a justification under international law, which generally requires that governments make an effort to arrest a suspect first. He also asked the US how it calculated the risk to civilians, noting that an estimated 20 percent of deaths from targeted killings in Pakistan were civilians. Later, Heyns told reporters outside the meeting that he did not believe [JURIST report] the US adequately addressed his key concerns. A representative of the American Civil Liberties Union[advocacy website] also addressed the council [press release] in regards to US drone strikes, urging the UN to question the legal basis for the attacks.
The legality of drone strikes has been a controversial issue in recent months. UN High Commissioner for Human Rights Navi Pillay declared on Friday that US drone strikes in Pakistan raise grave legal concerns [JURIST report] under international law. Pillay expressed particular concern that the drone strikes do not comport with the international law principles of proportionality and distinction. In October, JURIST contributing editor Jeffrey Addicott asserted[JURIST op-ed] that the CIA drone strike in September[JURIST report] that killed senior al Qaeda leader and US citizen Anwar al-Awlaqi was legal under the law of war. Prior to the drone strike that killed al-Awlaqi, the Obama administration issued a memorandum [JURIST report] justifying the legality of such an action. In August, JURIST guest columnist Laurie Blank argued [JURIST op-ed] that the US government's claim that drone strikes in Pakistan have caused zero civilian casualties belied serious concerns about American interpretation and adherence to the laws of war.

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Labor law - April 2012 decisions

April 2012 Philippine Supreme Court Decisions on Labor Law and Procedure

Posted on May 10, 2012 by Leslie C. Dy

Here are select April 2012 rulings of the Supreme Court of the Philippines on labor law and procedure:

Dismissal; due process. When the Labor Code speaks of procedural due process, the reference is usually to the two (2)-written notice rule envisaged in Section 2 (III), Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code. MGG Marine Services, Inc. v. NLRC tersely described the mechanics of what may be considered a two-part due process requirement which includes the two-notice rule, “x x x one, of the intention to dismiss, indicating therein his acts or omissions complained against, and two, notice of the decision to dismiss; and an opportunity to answer and rebut the charges against him, in between such notices.”

Here, the first and second notice requirements have not been properly observed. The adverted memo would have had constituted the “charge sheet,” sufficient to answer for the first notice requirement, but for the fact that there is no proof such letter had been sent to and received by him. Neither was there compliance with the imperatives of a hearing or conference. Suffice it to point out that the record is devoid of any showing of a hearing or conference having been conducted. And the written notice of termination itself did not indicate all the circumstances involving the charge to justify severance of employment. For violating petitioner’s right to due process, the Supreme Court ordered the payment to petitioner of the amount of P30,000 as nominal damages. Armando Ailing vs. Jose B. Feliciano, Manuel F. San Mateo III, et al., G.R. No. 185829. April 25, 2012.

Dismissal; just cause. In fine, an employee’s failure to meet sales or work quotas falls under the concept of gross inefficiency, which in turn is analogous to gross neglect of duty that is a just cause for dismissal under Article 282 of the Code. However, in order for the quota imposed to be considered a valid productivity standard and thereby validate a dismissal, management’s prerogative of fixing the quota must be exercised in good faith for the advancement of its interest. The duty to prove good faith, however, rests with WWWEC as part of its burden to show that the dismissal was for a just cause. WWWEC must show that such quota was imposed in good faith. This WWWEC failed to do, perceptibly because it could not. The fact of the matter is that the alleged imposition of the quota was a desperate attempt to lend a semblance of validity to Aliling’s illegal dismissal. Armando Ailing vs. Jose B. Feliciano, Manuel F. San Mateo III, et al., G.R. No. 185829. April 25, 2012.

Dismissal; retrenchment. Retrenchment is a valid exercise of management prerogative subject to the strict requirements set by jurisprudence, to wit:

(1)  That the retrenchment is reasonably necessary and likely to prevent business losses which, if already incurred, are not merely de minimis, but substantial, serious, actual and real, or if only expected, are reasonably imminent as perceived objectively and in good faith by the employer;

(2)  That the employer served written notice both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment;

(3)  That the employer pays the retrenched employees separation pay equivalent to one month pay or at least ½ month pay for every year of service, whichever is higher;

(4)  That the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employees’ right to security of tenure; and

(5)  That the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as status, x x x efficiency, seniority, physical fitness, age, and financial hardship for certain workers.

As aptly found by the NLRC and justly sustained by the CA, Petrocon exercised its prerogative to retrench its employees in good faith and the considerable reduction of work allotments of Petrocon by Saudi Aramco was sufficient basis for Petrocon to reduce the number of its personnel. As for the notice requirement, however, contrary to petitioner’s contention, proper notice to the DOLE within 30 days prior to the intended date of retrenchment is necessary and must be complied with despite the fact that respondent is an overseas Filipino worker. In the present case, although respondent was duly notified of his termination by Petrocon 30 days before its effectivity, no allegation or proof was advanced by petitioner to establish that Petrocon ever sent a notice to the DOLE 30 days before the respondent was terminated. Thus, this requirement of the law was not complied with. Despite the fact that respondent was employed by Petrocon as an OFW in Saudi Arabia, still both he and his employer are subject to the provisions of the Labor Code when applicable. The basic policy in this jurisdiction is that all Filipino workers, whether employed locally or overseas, enjoy the protective mantle of Philippine labor and social legislations (citing Philippine National Bank v. Cabansag, G.R. No. 157010, June 21, 2005, 460 SCRA 514, 518 and Royal Crown Internationale v. NLRC, G.R. No. 78085, October 16, 1989, 178 SCRA 569.)International Management Services/Marilyn C. Pascual vs. Roel P. Logarta, G.R. No. 163657, April 18, 2012.

Employee; probationary employee. The aforequoted Section 6 of the Implementing Rules of Book VI, Rule VIII-A of the Code specifically requires the employer to inform the probationary employee of such reasonable standards at the time of his engagement, not at any time later; else, the latter shall be considered a regular employee. Thus, pursuant to the explicit provision of Article 281 of the Labor Code, Section 6(d) of the Implementing Rules of Book VI, Rule VIII-A of the Labor Code and settled jurisprudence, petitioner Aliling is deemed a regular employee as of June 11, 2004, the date of his employment contract.

The letter-offer to Aliling states that the regularization standards or the performance norms to be used are still to be agreed upon by him and his supervisor. Moreover, Aliling was assigned to GX trucking sales, an activity entirely different to the Seafreight Sales for which he was originally hired and trained for. In the present case, there was no proof that Aliling was informed of the standards for his continued employment, such as the sales quota, at the time of his engagement. Armando Ailing vs. Jose B. Feliciano, Manuel F. San Mateo III, et al., G.R. No. 185829. April 25, 2012.

Employee; separation package. Article 283 of the Labor Code provides only the required minimum amount of separation pay, which employees dismissed for any of the authorized causes are entitled to receive. Employers, therefore, have the right to create plans, providing for separation pay in an amount over and above what is imposed by Article 283. There is nothing therein that prohibits employers and employees from contracting on the terms of employment, or from entering into agreements on employee benefits, so long as they do not violate the Labor Code or any other law, and are not contrary to morals, good customs, public order, or public policy.

Consequently, petitioners are not allowed to receive separation pay from both the Labor Code, on the one hand, and the New Gratuity Plan and the SSP, on the other, they would receive double compensation for the same cause (i.e., separation from the service due to redundancy). Ma. Corina C. Jiao, et al. vs. Global Business Bank, Inc., et al., G.R. No. 182331, April 18, 2012.

Employer-employee relationship. In determining the presence or absence of an employer-employee relationship, the Court has consistently looked for the following incidents, to wit:  (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee on the means and methods by which the work is accomplished. The last element, the so-called control test, is the most important element.

It can be deduced from the March 1996 affidavit of petitioner that respondents challenged his authority to deliver some 158 checks to SFC. Considering that petitioner contested respondents’ challenge by pointing to the existing arrangements between BCC and SFC, it should be clear that respondents did not exercise the power of control over petitioner, because he thereby acted for the benefit and in the interest of SFC more than of BCC. Charlie Jao vs. BCC Products Sales, Inc. and Terrance Ty, G.R. No. 163700, April 18, 2012.

Project employee; conversion into regular employee. In all the 38 projects where DMCI engaged Jamin’s services, the tasks he performed as a carpenter were indisputably necessary and desirable in DMCI’s construction business. He might not have been a member of a work pool since DMCI insisted that it does not maintain a work pool, but his continuous rehiring in 38 projects over a period of 31 years and the nature of his work unmistakably made him a regular employee. In Maraguinot, Jr. v. NLRC, 348 Phil. 580 (1998), the Court held that once a project or work pool employee has been: (1) continuously, as opposed to intermittently, rehired by the same employer for the same tasks or nature of tasks; and (2) these tasks are vital, necessary and indispensable to the usual business or trade of the employer, then the employee must be deemed a regular employee.

Surely, length of time is not the controlling test for project employment but it is vital in determining if the employee was hired for a specific undertaking or if it is tasked to perform functions vital, necessary and indispensable to the usual business or trade of the employer. Here, [private] respondent had been a project employee several times over. The nature of his employment ceased to be project-based when he was repeatedly re-hired due to the demands of petitioner’s business. D.M. Consunji, Inc. and/or David M. Consunji vs. Estelito, G.R. No. 192514, April 18, 2012.

Dismissal; willful disobedience. For willful disobedience to be a valid cause for dismissal, these two elements must concur: (1) the employee’s assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee, and must pertain to the duties which he had been engaged to discharge.

The petitioner’s arbitrary defiance to Graphics, Inc.’s order for him to render overtime work constitutes willful disobedience. Because of his refusal to render overtime work, the company failed to meet its printing deadlines, resulting in losses to the company. The Supreme Court took into account the fact that petitioner was inclined to absent himself and to report late for work despite being previously penalized, and affirmed the CA’s ruling that the petitioner is indeed utterly defiant of the lawful orders and the reasonable work standards prescribed by his employer. The Court reiterated its previous rulings stating that an employer has the right to require the performance of overtime service in any of the situations contemplated under Article 89 of the Labor Code and an employee’s non-compliance is willful disobedience.Realda v. New Age Graphics, Inc. et. al. G.R. No. 192190, April 25, 2012.

Dismissal; inefficiency. The petitioner’s failure to observe Graphics, Inc.’s work standards constitutes inefficiency that is a valid cause for dismissal. Failure to observe prescribed standards of work, or to fulfill reasonable work assignments due to inefficiency may constitute just cause for dismissal. Such inefficiency is understood to mean failure to attain work goals or work quotas, either by failing to complete the same within the alloted reasonable period, or by producing unsatisfactory results. As the operator of Graphics, Inc.’s printer, he is mandated to check whether the colors that would be printed are in accordance with the client’s specifications and for him to do so, he must consult the General Manager and the color guide used by Graphics, Inc. before making a full run. The employee in this case failed to observe this simple procedure and proceeded to print without making sure that the colors were at par with the client’s demands. This resulted to delays in the delivery of output, client dissatisfaction, and additional costs to Graphics, Inc.. Realda v. New Age Graphics, Inc. et. al. G.R. No. 192190, April 25, 2012.

Dismissal; due process. In King of Kings Transport, Inc. v. Mamac, this Court laid down the manner by which the procedural due requirements of due process can be satisfied:

(1)          The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period.  “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense.  This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint.  Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees.  A general description of the charge will not suffice.  Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees.

(2)          After serving the first notice, the employers should schedule and conduct a hearing or conferencewherein the employees will be given the opportunity to: (a) explain and clarify their defenses to the charge against them; (b) present evidence in support of their defenses; and (c) rebut the evidence presented against them by the management.  During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice.  Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.

(3) After determining that termination of employment is justified, the employers shall serve the employees awritten notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.

Graphics, Inc. failed to afford the petitioner with a reasonable opportunity to be heard and defend itself. An administrative hearing set on the same day that the petitioner received the memorandum and the 24-hour period given to him to submit a written explanation is far from reasonable. Furthermore, there is no indication that Graphics, Inc. issued a second notice, informing the petitioner of his dismissal. Graphics, Inc. admitted that it decided to terminate the petitioner’s employment when he ceased to report for work after being served with the memorandum requiring him to explain and subsequent to his failure to submit a written explanation. However, there is nothing on record showing that Graphics, Inc. placed its decision to dismiss in writing and that a copy thereof was sent to the petitioner. Notwithstanding the existence of a just cause to terminate petitioner’s employment, respondent was ordered to pay P30,000 as nominal damages for violation of the employee’s right to due process. Realda v. New Age Graphics, Inc. et. al. G.R. No. 192190, April 25, 2012.

Dismissal; willful disobedience. Willful disobedience requires the concurrence of two elements: (1) the employee’s assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee, and must pertain to the duties which he had been engaged to discharge. Both elements are present in this case.

First, at no point did the dismissed employees deny Kingspoint Express’ claim that they refused to comply with the directive for them to submit to a drug test or, at the very least, explain their refusal. This gives rise to the impression that their non-compliance is deliberate. The utter lack of reason or justification for their insubordination indicates that it was prompted by mere obstinacy, hence, willful thereby justifying their dismissal. Second, that the company’s order to undergo a drug test is necessary and relevant in the performance of petitioners’ functions as drivers of Kingspoint Express is obvious. As the NLRC correctly pointed out, drivers are indispensable to Kingspoint Express’ primary business of rendering door-to-door delivery services. It is common knowledge that the use of dangerous drugs has adverse effects on driving abilities that may render employees incapable of performing their duties. Not only are they acting against the interests of Kingspoint Express, they also pose a threat to the public. Kakampi and its members, et al. v. Kingspoint Express and Logistic and/or Mary Ann Co, G.R. No. 194813, April 25, 2012.

Dismissal; procedural due process requirements. While Kingspoint Express had reason to sever petitioners’ employment, this Court finds its supposed observance of the requirements of procedural due process pretentious. While Kingspoint Express required the dismissed employees to explain their refusal to submit to a drug test, the two (2) days afforded to them to do so cannot qualify as “reasonable opportunity”, which the Court construed in King of Kings Transport, Inc. v. Mamac as a period of at least five (5) calendar days from receipt of the notice.

Thus, even if a just cause exists for the dismissal of petitioners, Kingspoint Express is still liable to indemnify the dismissed employees, with the exception of Panuelos, Dizon and Dimabayao, who did not appeal the dismissal of their complaints, with nominal damages in the amount of P30,000.00. Kakampi and its members, et al. v. Kingspoint Express and Logistic and/or Mary Ann Co, G.R. No. 194813, April 25, 2012.

(Leslie thanks Rommel Lumagui for assisting in the preparation of this post.)

See - https://lexoterica.wordpress.com/2012/05/10/april-2012-philippine-supreme-court-decisions-on-labor-law-and-procedure/

April 2012 

Boundary dispute among LGUs; provisions of Local Govt Code on the issue.

For legal research purposes, we are sharing a petition we filed with the City Council of a MM city re a boundary dispute between two barangays in that city. Many will be surprised to know that in the PHL there are still many LGUs whose boundaries need to be rectified. The Local Government Code of 1991 has provisions on the matter.

P E T I T I O N

      THE PETITIONERS respectfully state:

I.                   PARTIES

A.     PETITIONERS

x x x.

B.     RESPONDENT

x x x.

II.               NATURE OF THE COMPLAINT

5.      This petition respectfully seeks the administrative, political, rule-making power, and quasi-judicial intervention of the City Council, pursuant to the Local Government Code of 1991, to find ways and means of resolving, with wisdom and finality, the long-existing boundary dispute and related issues that have negatively affected the territorial identity, administrative operations[2], delivery of basic services[3], collection of revenues and fees, voters registration, and other general welfare-related issues and concerns[4] facing the petitioner Barangay, resulting in unnecessary confusion in the minds of the voters, constituents and enterprises voting, residing, located or doing business within the territorial boundary of the petitioner Barangay and in the adjoining areas that were used to be known as forming part of the territorial boundary and jurisdiction petitioner Barangay for many decades now since it original creation.

6.      These issues have been in existence and have remained unresolved for the many decades now. It is time for the City Council to settle, resolve, mediate, arbitrate, and adjudicate the same with finality and in a comprehensive, wise, just, and fair manner, in the interest of public service and the general welfare not only of the two (2) contending Barangays but of the City itself as a whole.

III.            JURISDICTION AND APPLICABLE LAWS

7.      It will be noted that Sections 118 and 119 of the Local Government Code of 1991 provide for the specific procedures for the SETTLEMEMNT OF BOUNDARY DISPUTE. Inter alia, the said provisions vest in the City Council the power and authority to mediate, arbitrate, and adjudicate any and all boundary disputes between and among all Barangays located within its territorial jurisdiction, thus:

X X X.

SECTION 118.    Jurisdictional Responsibility for Settlement of Boundary Dispute. — Boundary disputes between and among local government units shall, as much as possible, be settled amicably. To this end:

(a)        Boundary disputes involving two (2) or more barangays in the same city or municipality shall be referred for settlement to the sangguniang panglunsod or sangguniang bayan concerned.

X x x.

(e)        In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within sixty (60) days from the date of the certification referred to above.  

SECTION 119.    Appeal. — Within the time and manner prescribed by the Rules of Court, any party may elevate the decision of the sanggunian concerned to the proper Regional Trial Court having jurisdiction over the area in dispute. The Regional Trial Court shall decide the appeal within one (1) year from the filing thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained and continued for all legal purposes.

      X X X.

8.      Sections 7, et. seq. of the Code provides of the CREATION AND CONVERSION, DIVISION AND MERGER, ABOLOTION, and PLEBISCITE REQUIREMENT, by way of general guidelines, thus: 

X X X.

SECTION 7.       Creation and Conversion. — As a general rule, the creation of a local government unit or its conversion from one level to another level shall be based on verifiable indicators of viability and projected capacity to provide services, to wit:  

(a)        Income. — It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned;  

(b)        Population. — It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and  

(c)        Land Area. — It must be contiguous, unless it comprises two or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace.  

Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR).  

SECTION 8.       Division and Merger. — Division and merger of existing local government units shall comply with the same requirements herein prescribed for their creation: Provided, however, That such division shall not reduce the income, population, or land area of the local government unit or units concerned to less than the minimum requirements prescribed in this Code: Provided, further, That the income classification of the original local government unit or units shall not fall below its current classification prior to such division.  

The income classification of local government units shall be updated within six (6) months from the effectivity of this Code to reflect the changes in their financial position resulting from the increased revenues as provided herein.  

SECTION 9.       Abolition of Local Government Units. — A local government unit may be abolished when its income, population, or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under Book III of this Code, as certified by the national agencies mentioned in Section 7 hereof to Congress or to the sangguniang concerned, as the case may be.  

The law or ordinance abolishing a local government unit shall specify the province, city, municipality, or barangay with which the local government unit sought to be abolished will be incorporated or merged.  

SECTION 10.      Plebiscite Requirement. — No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on Elections (Comelec) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date.  

      X X X.

9.      Sections 385 and 386 of the Code provide for the MANNER OF CREATION of and the CONSOLIDATION PLAN for Barangays, thus:

SECTION 385.    Manner of Creation. — A barangay may be created, divided, merged, abolished, or its boundary substantially altered, by law or by an ordinance of the sangguniang panlalawigan or panglunsod, subject to approval by a majority of the votes cast in a plebiscite to be conducted by the Comelec in the local government unit or units directly affected within such period of time as may be determined by the law or ordinance creating said barangay. In the case of the creation of barangays by the sangguniang panlalawigan, the recommendation of the sangguniang bayan concerned shall be necessary.  

SECTION 386.    Requisites for Creation. — (a) A barangay may be created out of a contiguous territory which has a population of at least two thousand (2,000) inhabitants as certified by the National Statistics Office except in cities and municipalities within Metro Manila and other metropolitan political subdivisions or in highly urbanized cities where such territory shall have a certified population of at least five thousand (5,000) inhabitants: Provided, That the creation thereof shall not reduce the population of the original barangay or barangays to less than the minimum requirement prescribed herein.  

x x x.

(b)        The territorial jurisdiction of the new barangay shall be properly identified by metes and bounds or by more or less permanent natural boundaries. The territory need not be contiguous if it comprises two (2) or more islands.  

(c)        The governor or city mayor may prepare a consolidation plan for barangays, based on the criteria prescribed in this Section, within his territorial jurisdiction. The plan shall be submitted to the sangguniang panlalawigan or sangguniang panglunsod concerned for appropriate action.  

In the case of municipalities within the Metropolitan Manila Area and other metropolitan political subdivisions, the barangay consolidation plan shall be prepared and approved by the sangguniang bayan concerned.  

                        X X X.

10. The long-existing boundary dispute and related issues and concerns, as well as the general feeling of confusion, disorderliness and instability created in the minds of the constituents of the two (2) contending Barangays for many decades now have negatively affected the effectiveness and efficiency of the operations and the delivery of basic services by the said Barangays, as well as the performance of their delegated powers, as provided in the Code, which are quoted hereinbelow.

10.1.       This age-old destabilizing situation is not conducive to the promotion of the general welfare not only of the constituents and of the contending Barangays but also the City itself as a local government unit.

X X X.

CHAPTER 4. — The Sangguniang Barangay 

X x x.

SECTION 391.    Powers, Duties, and Functions. — (a) The sangguniang barangay, as the legislative body of the barangay, shall:  

(1)        Enact ordinances as may be necessary to discharge the responsibilities conferred upon it by law or ordinance and to promote the general welfare of the inhabitants therein;  

(2)        Enact tax revenue ordinances, subject to the limitations imposed in this Code;  

(3)        Enact annual and supplemental budgets in accordance with the provisions of this Code;  

(4)        Provide for the construction and maintenance of barangay facilities and other public works projects chargeable to the general fund of the barangay or such other funds actually available for the purpose;  

(5)        Submit to the sangguniang panglunsod or sangguniang bayan such suggestions or recommendations as it may see fit for the improvement of the barangay or for the welfare of the inhabitants thereof;  

(6)        Assist in the establishment, organization, and promotion of cooperative enterprises that will improve the economic condition and well-being of the residents;

 (7)        Regulate the use of multi-purpose halls, multi-purpose pavements, grain or copra dryers, patios and other post-harvest facilities, barangay waterworks, barangay markets, parking areas or other similar facilities constructed with government funds within the jurisdiction of the barangay and charge reasonable fees for the use thereof;  

(8)        Solicit or accept monies, materials and voluntary labor for specific public works and cooperative enterprises of the barangay from residents, land owners, producers and merchants in the barangay; monies from grants-in-aid, subsidies, contributions, and revenues made available to the barangays from national, provincial, city or municipal funds; and monies from other private agencies and individuals: Provided, however, That monies or properties donated by private agencies and individuals for specific purposes shall accrue to the barangay as

trust fund;  

(9)        Solicit or accept, in any or all the foregoing public works and cooperative enterprises, such cooperation as is made available by national, provincial, city, or municipal agencies established by law to render financial, technical, and advisory assistance to barangays and to barangay residents: Provided, however, That in soliciting or accepting such cooperation, the sangguniang barangay need not pledge any sum of money for expenditure in excess of amounts currently in the barangay treasury or encumbered for other purposes;

(10)      Provide compensation, reasonable allowances or per diems as well as travel expenses for sangguniang barangay members and other barangay officials, subject to the budgetary limitations prescribed under Title Five, Book II of this Code: Provided, however, That no increase in the compensation or honoraria of the sangguniang barangay members shall take effect until after the expiration of the full term of all members of the sangguniang barangay approving such increase;  

(11)      Hold fund-raising activities for barangay projects without the need of securing permits from any national or local office or agency. The proceeds from such activities shall be tax-exempt and shall accrue to the general fund of the barangay: Provided, That in the appropriation thereof, the specific purpose for which such fund-raising activity has been held shall be first satisfied: Provided, further, That no fund-raising activities shall be held within a period of sixty (60) days immediately preceding and after a national or local election, recall, referendum, or plebiscite: Provided, finally, That said fund-raising activities shall comply with national policy standards and regulations on morals, health, and safety of the persons participating therein. The sangguniang barangay, through the punong barangay, shall render a public accounting of the funds raised at the completion of the project for which the fund-raising activity was undertaken;  

(12)      Authorize the punong barangay to enter into contracts in behalf of the barangay, subject to the provisions of this Code;  

(13)      Authorize the barangay treasurer to make direct purchases in an amount not exceeding One thousand pesos (P1,000.00) at any one time for the ordinary and essential administrative needs of the barangay;  

(14)      Prescribe fines in amounts not exceeding One thousand pesos (P1,000.00) for violation of barangay ordinances;  

(15)      Provide for the administrative needs of the lupong tagapamayapa and the pangkat ng tagapagkasundo;  

(16)      Provide for the organization of community brigades, barangay tanod, or community service units as may be necessary;  

(17)      Organize regular lectures, programs, or fora on community problems such as sanitation, nutrition, literacy, and drug abuse, and convene assemblies to encourage citizen participation in government;  

(18)      Adopt measures to prevent and control the proliferation of squatters and mendicants in the barangay;  

(19)      Provide for the proper development and welfare of children in the barangay by promoting and supporting activities for the protection and total development of children, particularly those below seven (7) years of age;  

(20)      Adopt measures towards the prevention and eradication of drug abuse, child abuse, and juvenile delinquency;  

(21)      Initiate the establishment of a barangay high school, whenever feasible, in accordance with law;  

(22)      Provide for the establishment of a non-formal education center in the barangay whenever feasible, in coordination with the Department of Education, Culture and Sports;  

(23)      Provide for the delivery of basic services; and  

(24)      Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance.  

SECTION 392.    Other Duties of Sangguniang Barangay Members. — In addition to their duties as members of the sangguniang barangay, sangguniang barangay members may:  

(a)        Assist the punong barangay in the discharge of his duties and functions;  

(b)        Act as peace officers in the maintenance of public order and safety; and  

(c)        Perform such other duties and functions as the punong barangay may delegate.  

                        X X X.

11.   The Code has provided for the RULES OF INTERPRETATION that the City Council may apply in a situation such as the present dispute, thus:

X X X.

SECTION  5.       Rules of Interpretation. — In the interpretation of the provisions of this Code, the following rules shall apply:  

(a)        Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit.

Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned;  

X x x .

(c)        The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community;  

(d)        Rights and obligations existing on the date of effectivity of this Code and arising out of contracts or any other source of presentation involving a local government unit shall be governed by the original terms and conditions of said contracts or the law in force at the time such rights were vested; and  

(e)        In the resolution of controversies arising under this Code where no legal provision or jurisprudence applies, resort may be had to the customs and traditions in the place where the controversies take place.  

                        X X X.

12.  The petitioners are motivated by GOOD FAITH in filing this petition before the City Council. They do not intend to create any animosity between and among the people and the leaders of the two contending Barangays. The petitioners, in fact, adhere to the spirit of COOPERATIVISM AND UNITY provided in the Code, thus:

X X X.

SECTION 33.      Cooperative Undertakings Among Local Government Units. — Local government units may, through appropriate ordinances, group themselves, consolidate, or coordinate their efforts, services, and resources for purposes commonly beneficial to them. In support of such undertakings, the local government units involved may, upon approval by the sanggunian concerned after a public hearing conducted for the purpose, contribute funds, real estate, equipment, and other kinds of property and appoint or assign personnel under such terms and conditions as may be agreed upon by the participating local units through Memoranda of Agreement. 

      X X X.

IV.             STATEMENT OF FACTS

13.  Based on the documents so far gathered by the petitioner from the records of the City Government, on April 3, 1978, former Pres. Ferdinand Marcos issued the following Presidential Decrees (PD), which created Barangay Talon Dos, Barangay Talon Tres, Barangay Talon Kuatro, and Barangay Talon Singko, out of then then existing “Barangay Talon”, copies of which are hereto attached as Annex “A” to Annex “D”, to wit:

a.      PD No. 1335 (Annex “A”). – Barangay Talon Dos.  

b.      PD No. 1336 (Annex “B”). – Barangay Talon Tres.

c.       PD No. 1337 (Annex “C”). – Barangay Talon Kuatro.

d.      PD No. 1338 (Annex “D”). – Barangay Talon Singko.

14.  Pursuant to PD No. 1338 (Annex “D”, supra), which created in 1978 the petitioner Barangay Talon Singko,  “the following subdivisions known as MOONWALK, AGRO HOMES, MIKESELL, ST. SCHOLASTICA, and DELNOR in Barangay Talon” were “detached and separated therefrom to form and constitute into a distinct and independent barangay which is created to be known as Barangay Talon Singko without affecting in any manner the legal existence of the mother Barangay Talon.”  (emphasis supplied).

  

15.  It appears from the records of the Office of the City Engineer that in the past it had apparently made preliminary technical studies of the boundaries of the various Barangays of the City.

15.1.        Copies of the said preliminary technical studies insofar as they refer to petitioner Barangay Talon Singko are attached hereto as Annexes “E”, “F”, and “G” hereof.

15.2.       As far as could be gathered by the petitioners from the records of the said Office, the area of petitioner Barangay Talon Singko has an “actual area” of 137.25 hectares, constituting 4.16% of the City’s total of 3,298.60 hectares. The study shows that it “proposed” to increase its area to 166.35 hectares or 5.04% of the total area of the City, i.e., a proposed increase of 29.10 hectares. (See Annex “E”,  with the unexplained title “Option One”).

15.3.       Petitioners do not have a complete copy of the said technical studies; do not know the legal basis for the commencement and conduct the said studies; under whose legal authority the same were done; what entity or agency or firm which conducted the field surveys, mappings and other aspects of the said studies; to whom the final results and recommendations of the said studies were submitted; what official actions were taken by the proper authorities of the City on the said results or recommendations; whether the proper ordinance was adopted by the City Council and approved by the City Mayor in accordance with the said studies; and many other unknown things, facts and events relative to the said studies and its aftermath or consequences.

15.4.       At any rate, the petitioners are not legally bound by the said studies, the same being what they are, i.e., mere studies and proposals which have not matured into an officially approved ordinance that had been subjected to an official Comelec-supervised plebiscite among the constituents of the affected Barangays, as mandated by the Local Government Code of 1991.

16.  Many years back, in the early or middle part of the 1990s during the tenure of the former Chairman of petitioner Barangay Talon Singko, INNOCENCIO L. VALLE, the herein petitioner Barangay Talon Singko had formally submitted to the City Council a POSITION PAPER, a copy of which is attached as Annex “H” hereof. It was submitted to a committee of the City Council which was then conducting a hearing on respondent Barangay Talon Uno’s letter-complaint that it had filed with the City Council on the matter of the boundary dispute between it and the herein petitioner Barangay Talon Singko. It appears that the City Council at that time did not take a final action or determination thereon by way of an ordinance or a resolution. In his aforecited position paper, Chairman Valle argued that:

16.1.        In 1991 respondent Barangay Talon Uno passed Barangay Resolution No. 22, Series of 1991, “for the purpose of claiming jurisdictional powers over areas where Barangay Talon Singko exercises jurisdictional powers”.

16.2.       Respondent Barangay Talon Uno  installed signboards “over certain areas in Talon Singko xxx giving the impression that it is Talon Uno who has jurisdiction over these areas”.

16.3.       The territorial jurisdiction of Barangay Talon Singko is “NOT LIMITED TO THE AREAS COVERED BY THE SUBDIVISIONS enumerated in P.D. No. 1338 (Moonwalk, Agro Homes,  Mikesell, St. Scholastica and Delnor)” because “Barangay Talon Singko’s jurisdiction extends to areas contiguous  to these subdivisions over which Talon Singko presently exercise(s) jurisdiction by way of delivering essential public services x x x.”

16.4.       The aforecited position of Barangay Talon Singko, according to Chairman Valle,  was buttressed by (a) PD No. 1338, (b) Local Government Code of 1991, (c) Cadastral Map of Talon Singko prepared by the Bureau of Lands, (d) Location of Voting Precincts by the Comelec, (e) Recognition By The Candidates For Barangay Talon Singko  Who Resided Outside of the Five (5) Subdivisions Enumerated in PD No. 1338, and (f) Services Rendered by Barangay Talon Singko to Residents Outside of the Five (5) Subdivisions Enumerated by PD No. 1338 who Sought Services in Talon Singko.

16.5.       Chairman Valle cited Section 7 © of the Local Government Code (in relation to Section 2 of PD No. 1338, on the requirement that the land area of a Barangay must be “CONTIGUOUS” and “PROPERLY IDENTIFIED BY METES AND BNOUNDS WIOTH TECHNMICAL DESCRIPTIONS” and “SUFFICIENT TO PROVIDE  FOR SUCH BASIS SERVICES AND FACILITIES TO MEET THE REQUIREMENTS OF ITS POPULACE”.

16.6.       PD No. 1338 did not describe the METES AND BOUNDS of Barangay Talon Singko but merely enumerated the five (5) subdivisions.

16.7.        Simultaneously with the submission of his Position Paper, Chairman Valle also submitted therewith to the City Council a CADASTRAL MAP of Barangay Talon Singko prepared by the Land Management Bureau, wherein it appeared that the total area of the said Barangay in 1991 was 271.8195 hectares, which included the above-mentioned five (5) subdivisions and the AREAS CONTIGUOUS  THERETO.

16.8.       Chairman Valle Sec. 6 of the Code as the source of the power of the City Council to alter substantially the boundaries of Barangays within its jurisdiction by way of an Ordinance adopted for the purpose.

16.9.       He stressed, thus: “In the case of Talon Singko, it is prayed that the attached Cadastral Map be made the basis for fixing its territorial jurisdiction”. (See: Page 4 of the Position Paper of Chairman Valle).

16.10.   The Comelec had allowed voters living in the areas contiguous to the five (5) subdivisions enumerated in PD No. 1338 to register and vote in the precincts that it had created and installed in Barangay Talon Singko, i.e., recognizing the residence/domicile of the said voters as being officially located within the territory of Barangay Talon Singko.

16.11.    Comelec had allowed two (2) Kagawads of Barangay Talon Singko at that time, in the persons of MARTIN BUMANLAG (a resident of Metrocor Homes) and JEANILIND DE RAMA (a resident of Veraville Homes), to vote and be voted upon as Kagawads of Barangay Talon Singko.

16.12.   Barangay Talon Singko had administered the provisions of the Barangay Justice Law of the Local Government Code to the parties/litigants who lived in the areas contiguous to the five (5) subdivisions enumerated in PD No. 1338 who had sought such justice-related services of Barangay Talon Singko.

17.  For purposes of the instant petition, the herein petitioners (who are incumbent Kagawads of petitioner Barangay Talon Singko) have recently adopted a POSITION PAPER, a copy of which is attached as Annex “I” hereof, substantially  adopting the legal and factual arguments of Chairman Valle, supra.

18.   In a LETTER, dated February 5, 2012, a copy of which is attached as Annex “J” hereof, the Barangay Council of Barangay Talon Singko wrote the City Mayor, Hon. Vergel A. Aguilar, to PROTEST the actions apparently being taken by the City Council to reduce the land area of Barangay Talon 5 to favor the claim of respondent Barangay Talon Uno. They cited various legal, factual, and administrative grounds in support of their Letter. They prayed that the current Cadastral Map/Survey prepared by the Department of Environment and Natural Resources, a copy of which was attached to the said Letter and submitted to the City Mayor, be made as the basis to affirm the current territorial boundaries of Barangay Talon Singko as recognized and practiced for many decades. They also attached to their Letter copies of petitions that had been submitted to them by the constituents of Barangay Talon Singko in support of their position.

19.  On March 27, 2012, the Barangay Council of petitioner Barangay Talon Singko adopted BARANGAY RESOLUTION NO. 10-12, Series of 2012, a copy of which is attached as Annex “K” hereof,  authorizing the creation of an ad hoc Committee to conduct general consultations with the people of Barangay Talon Singko, commencing the institution of the proper legal actions against respondent Barangay Talon Uno, and empowering its Chairman, John John Orcine and its External Legal Counsel, to represent the said Barangay in respect of such legal actions at the formal attorneys-in-fact thereof.

20.  Various homeowners associations and/or residents/voters living in the five (5)subdivisions and in the areas outside thereof but are contiguous thereto have recently submitted to the petitioner Barangay Talon Singko their respective written mass petitions in support of the position of the petitioners, to wit:

20.1.       Annex “L”. – Board Resolution No. 2011-04, dated August 27, 2011,  adopted by the METROCOR –B HOMEOWNERS ASSOCIATION, INC., which contains the signatures of its directors and officers, as well as its mass membership.

20.2.      Annex “M”. – Mass Letter-Petition, dated  January 13, 2012, from the directors, officers and mass membership of the UNITED CAIMITO (GOLDEN ACRES SUBDIVISION) NEIGHBORHOOD ASSOCIATION, INC. addressed to the City Mayor.

20.3.      Annex “N”. – Mass Letter-Petition, dated January 13, 2012, from the directors, officers and the mass membership of the SAMATA, Talon Singko.

20.4.      Annex “O”. - Mass Letter-Petition, dated January 15, 2012, from the directors, officers and mass membership of the SAMAHANG PAGBABAGO NEIGHBORHOOD ASSOCIATION, INC. (KALIPI).

20.5.      Annex “P”. - Mass Letter-Petition, dated January 15, 2012, from the directors, officers and mass membership of the DONA LEONCIA SUBDIVISION HOMEOWNERS ASSOCIATION, INC.

21.  The prejudicial and injurious efforts of the respondent Barangay Talon Uno, acting thru its Chairman EMILIANHO RAMOS, to control, take over, and assume power over the areas contiguous to the five (5) subdivisions which have been, for many decades, traditionally and officially classified by the City as part and parcel of petitioner Barangay Talon Singko, continue to this very date.

21.1.        The latest proof the petitioners have gathered along this line is a Letter, dated April 18, 2012, issued by respondent Barangay Talon Uno Chairman Emiliano Ramos addressed to Abet Penafiel, president of             PAG-IBIG HOMEOWNERS ASSOCIATION (Golden Acres Subd.)     , a copy of which is attached as Annex “Q” hereof. It misleads the addressee to believe that there are no Barangay authorities serving them and that they may write him an “endorsement letter” signed by Mr. Penafiel and his members. It further misleads the addressee to believe that respondent Barangay Talon Uno has jurisdiction over Golden Acres Subdivision and all the various homeowners associations existing therein.     

V.                 RELIEF

WHEREFORE, premised considered, it is respectfully prayed that:

1.      This petition be given DUE COURSE by the City Council and the Respondent be summoned to file its formal ANSWER thereto to formally join the issues in this case;

2.      This petition be referred to the proper Committees of the City Council for (a) MEDIATION (amicable settlement) and for (b) ARBITRATION/ADJUDICATION of this pending case by the City Council (i.e., after the proper presentation of evidence and witnesses by the parties and clarificatory examination/interpellation by the investigating Committee members), in the event of failure of the parties to arrive at a compromise, as mandated by the Local Government Code of 1991;

3.      Independent/neutral expert witnesses, resource persons and/or technical consultants from the concerned Departments, Bureaus, and/or Agencies of the National Government and the City Government of Las Pinas be identified and invited by the City Council to appear during the Committee hearings for consultation and clarificatory examination by the investigating Committees, with the parties being allowed to conduct cross-examinations in the interest of justice;

4.      A new, comprehensive and updated/current land survey of Barangay Talon Singko and Barangay Talon Uno be ordered by the City  Council to form part of the evidence of this case for consideration by the investigating Committees thereof, which land survey shall include as part and parcel of petitioner Barangay Talon Singko all the areas which are outside of the five (5) subdivisions listed in PD No. 1338 but which are CONTIGUOUS thereto and which have been recognized for many decades now as part and parcel of petitioner Barangay Talon Singko;

5.      An opinion survey/poll be conducted by the City Council among the residents/voters of the areas which are outside the five (5) subdivisions enumerated in PD No. 1338 but which are CONTIGUOUS thereto and which have been traditionally recognized for many decades as part and parcel of petitioner Barangay Talon Singko to aid the investigating Committees in their appreciation of the pulse of the affected voters/residents in the said areas;

6.      A BARANGAY CONSOLIDATION PLAN be adopted by the City Council, subject to a PLEBISCITE, as mandated by the Local Government Code, to formally recognize the current territory of Barangay Talon Singko, that is, to include the areas outside of the five (5) subdivisions listed in PD No. 1338 but which are CONTIGUOUS thereto and which have been traditionally recognized as part and parcel of petitioner Barangay Talon Singko for many decades now;

7.      Pendente lite, the officers of the respondent Barangay Talon Uno be ordered to maintain the STATUS QUO ANTE LITIS MOTAM and that it be RESTRAINED AND ENJOINED from making any act or effort or activity that would tend to undermine or prejudice or weaken the current exercise of jurisdiction by petitioner Barangay Talon Singko over the areas outside of the five (5) subdivisions listed in PD No. 1338 but which are CONTIGUOUS thereto and which have been traditionally recognized as part and parcel of petitioner Barangay Talon Singko for many decades now;

FURTHER, the petitioners respectfully pray for such and other reliefs as may be deemed just and equitable in the premises.

Las Pinas City, May 18, 2012.

LASERNA CUEVA-MERCADER LAW OFFICES

Counsel for Petitioners

Unit 15, Star Arcade, C.V Starr Avenue

Philamlife Village, Las Pinas City 1740

Tel. Nos. 8725443, 8462538

Email _ lcmlaw@gmail.com

URL – lcmlaw.multiply.com

www.facebook.com/lasernacuevamercaderlawoffices

www.twitter.com/lcmlaw_ph

attymanueljlasernajr.blogspot.com

x x x.

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[1] SECTION 22.      Corporate Powers. — (a) Every local government unit, as a corporation, shall have the following powers:  

(1)        To have continuous succession in its corporate name; 

(2)        To sue and be sued;  

(3)        To have and use a corporate seal;  

(4)        To acquire and convey real or personal property;  

(5)        To enter into contracts; and  

(6)        To exercise such other powers as are granted to corporations, subject to the limitations provided in this Code and other laws.  

[2] SECTION 15.      Political and Corporate Nature of Local Government Units. — Every local government unit created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a political subdivision of the national government and as a corporate entity representing the inhabitants of its territory.  

[3] SECTION 17.      Basic Services and Facilities. — (a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government units shall likewise exercise such other powers and discharge such other functions and responsibilities as are necessary, appropriate, or incidental to efficient and effective provisions of the basic services and facilities enumerated herein.  

(b)        Such basic services and facilities include, but are not limited to, the following:  

(1)        For Barangay: 

(i)         Agricultural support services which include planting materials distribution system and operation of farm produce collection and buying stations;  

(ii)        Health and social welfare services which include maintenance of barangay health center and day-care center;  

(iii)       Services and facilities related to general hygiene and sanitation, beautification, and solid waste collection;  

(iv)       Maintenance of katarungang pambarangay;  

(v)        Maintenance of barangay roads and bridges and water supply systems;  

(vi)       Infrastructure facilities such as multi-purpose hall, multipurpose pavement, plaza, sports center, and other similar facilities;  

(vii)       Information and reading center; and  

(viii)      Satellite or public market, where viable;  

[4] SECTION 16.      General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.