In a Resolution dated 18 November 2014 which was released yesterday, P/SUPT. Catailno A. Mallnao (MALINAO), Assistant Superintendent for Reformation and Administration of the New Bilibid Prison (NBP), was found to be administratively liable for grave misconduct and conduct prejudicial to the best interest of service for interfering with the official operations of the Security and Patrol Unit (SPU) of the Bureau of Corrections (BuCor). The Justice Secretary also resolved that there is substantial evidence to warrant the imposition of the corresponding penalty of Respondent MALINAO's dismissal from the service, including forfeiture of retirement benefits, cancellation of eligibility, with prejudice to reemployment in any branch or instrumentality of the government, including government-owned or controlled corporations, and bar from taking civil service examinations. Respondent MALINAO was also ordered by the Justice Secretary to immediately cease and desist from performing the functions of a Penal Superintendent of the BuCor.
The subject case stemmed from a Memorandum dated 07 July which was submitted by PGII Ronald Alabado (PGII Alabado), Supervisor of the SPU, to PSOI Lucio C. Guevarra, Commander of the Guards. PGII Alabado stated that on 07 July 2014, inmate David Allen Uy's makeshift home inside the premises of the Amazing Grace Chapel, :Building 11, was searched by the SPU upon the order of PGIII Ricardo Sespeñe Jr. Since inmate Uy cannot be located, the SPU personnel asked Rommel Deang, a ranking inmate, to witness the opening of the room of inmate Uy. During the search, a number of items were recovered and confiscated namely, 1 unit of Lenovo laptop, 1 DVD writer, 1 external memory, few cable wires, and 1 USB. Later, inmate Uy arrived with Respondent MALINAO who requested to see the confiscated items. When the items were handed to him, Respondent MALINAO allegedly uttered, "SA AKIN TO! NAKA-MR SA AKIN ITO, MAGKAKASAMA NAMAN TAYO DITO" and did not return the ecobag containing the confiscated items. PGII Alabado asked Respondent MALINAO to explain the matter to the Chief of the SPU but Respondent MALINAO declined and purportedly answered, "HUWAG NA MATING PAABUTIN DOON, LALAKI LANG", then left the area again with inmate Uy.
Responding to the Memorandum issued by P/Supt. I Rbberto R. Rabo, Officer-in-Charge of the NBP, Respondent MALINAO refused to return the Lenovo laptop. Respondent MALINAO also questioned the search and operations conducted by the SPU personnel when the BuCor issued a show cause order. A preliminary investigation was conducted by the BuCor Internal Affairs Service (lAS) regarding the mailer. When the administrative case was elevated to the DOJ, the Department found a prima facie case against Respondent MALINAO and issued a Formal Charge; dated 16 September 2014 for grave misconduct and conduct prejudicial to the best interest of service.
Anent the allegations of Respondent MALINAO that there is violation of procedural due process when the BuCor elevated the case to the DOJ, the Resolution stated that "the Director of the BuCor, as head of the agency, and the Department Secretary, have concurrent jurisdiction over the personnel of the BuCor. When the BuCor Director forwarded the case to the DOJ, it only means that the former is submitting the case over to the jurisdiction of the Secretary. The latter, in turn, assumed jurisdiction by issuing the appropriate Formal Charge. Hence, there was no violation of procedural due process.
As to the contention of Respondent MALINAO that the constitutional right of inmate Uy to due process and his right to privacy were violated when the search was made, the Justice Secretary ruled that the conduct of search and seizure operations by the SPU is an official act done in the performance of duty and part of the established mandate of the BuCor. The search and seizure operations may be conducted without prior notice or even without the presence of the inmate concerned for obvious reasons. Inmate Uy, being a prisoner, is subject to disciplinary rules by the Bureau and is not entitled all the rights bestowed upon a person whose liberty is not legally curtailed."
With respect to Respondent MALINAO's issue regarding the validity of the Investigation report made by the Security Investigation Section without taking his side, the Justice Secretary resolved that while Respondent MALINAO was not made to submit a written explanation, such is not a fatal defect that would warrant the nullification of the investigation made by the BuCor. The Internal Affairs Service of BuCor conducted its own investigation and later came out with the issuance of a show cause order. Assuming there was any defect, the same has already been cured when: (1) the IAS, notified the respondent when it conducted the required preliminary investigation and (2): upon the issuance of the Show Cause Order dated 31 July 2014, respondent complied with the directive by filing his answer. In administrative cases, a fair and reasonable opportunity to explain one's side suffices to meet the requirements of due process.
Regarding Respondent MALINAO's claim that the conflscated laptop was not prohibited, the Justice Secretary ruled that the confiscated laptop is within the prohibited items set forth in Section 10 of the BuCor Operating Manual.
As to the finding that there is grave misconduct and conduct prejudicial to the best interest of the service, the Justice Secretary highlighted the fact that the laptop found and confiscated in the shanty of inmate Uy was officially issued to Respondent MALINAO. Possession of the subject laptop by inmate Uy is not only prohibited under the premises but is extremely anomalous since the same is a government property officially issued to respondent himself." The Justice Secretary also pointed out that Respondent MALINAO has "no legal personality to raise the issue of illegal search. In any event, even assuming that respondent may raise such issue, he failed to present strong evidence to rebut the legitimacy of the SPU operation. The legal presumption is that an official duty has been duly performed. Since the search and seizure operation was an official act conducted by the SPU personnel, it is also protected by the presumption that the same was performed in good faith. The Justice Secretary agreed with the statement in the investigation report that Respondent MALINAO's interference in the legitimate operation of the SPU are acts or behaviour of any BuCor personnel in an unofficial or private capacity which, in dishonouring or disgracing himself personally as a gentleman, seriously compromises his position as a BuCor Official and exhibits himself as morally unworthy to remain as a member of the organization. In conclusion, the formal charges against Respondent MALINAO fall within the definition of grave misconduct and conduct prejudicial to the best interest of the service.
Since a careful evaluation of the evidence at hand shows that the same is substantial to support the alleged administrative infraction being levelled against Respondent MALINAO, the Justice Secretary resolved that he is dismissed from the service. He may, however, receive his accrued leave credits, subject to existing laws, rules and regulations.