THE ongoing brouhaha as to who should sit as General Manager of the Benguet Electric Cooperative (BENECO) has finally reached the Lower House of Congress.
In House Resolution Numbered 1776 filed by four congressmen namely: Congressman Presley De Jesus representing PHILRECA Partylist, Congressman Adriano Ebcas representing Ako Padayon Pilipino Partylist, Congressman Sergio Dagooc representing APEC Partylist, and Congressman Godofredo Guya representing RECOBODA Partylist, the Committee on Energy of the Lower House is “urged to conduct an inquiry, in aid of legislation, on the overreach of the national electrification administration on the screening, selection, and appointments of general managers of electric cooperatives and to revisit, define and review its mandate, powers and functions for that purpose.”
A search on the internet would show that the word “overreach” means “conduct that exceeds established limits (as of authority or due process).” In other words the inquiry is being asked precisely to find out what conduct was exercised by NEA that amounted to an act or decision beyond its authority or power to make.
From the contents of the Resolution it can be determined that the focus of the request for the inquiry stems from an act of the NEA in endorsing to the BENECO Board of Directors (BOD) only one qualified applicant to the position of General Manager despite the reported availability of another qualified applicant. So the main issue to be resolved actually is whether NEA in its endorsement of only one qualified applicant acted within its power and authority or committed an act beyond its purview.
In simpler terms is the act of endorsement by NEA a discretionary function or purely a ministerial one.
To obtain a better perspective of the matter The Department of Energy in 2013 issued Department Circular No. 07-0015 which prescribed the Implementing Rules and Regulations (IRR) of Republic Act No. 10531, otherwise known as the “National Electrification Administration Reform Act of 2013”. In that IRR it explicitly provides for the supervisory powers of the NEA over electric cooperatives (EC) which among others include the power of the NEA to issue preventive or disciplinary measures including, but not limited to, suspension or removal and replacement of any or all of the members of the BOD and officers of the EC as it may deem fit and necessary. This supervisory and disciplinary powers of the NEA under the said act is limited only to the condition that in its exercise of such powers due process of law must be strictly observed.
For its part the NEA issued Memorandum Numbered 2017-035 which revised the policy on the selection, hiring, termination of service/suspension for general managers of electric cooperatives with the rationale that “the selection, hiring and termination of service/suspension of a general manager are some of the most sensitive procedures in an EC. To promote transparency and prevent complications that may arise from the conduct of such procedures, a uniform set of standards for the selection, hiring, termination of service/suspension of a general manager, to be followed by all ECs, is instituted by the NEA thru this policy.” (Italics provided for emphasis)
In that memorandum under Item No. III, Section 2, pars. D and E applicants to the position of general manager (GM) who have already pre-qualified will be invited to appear for personal interview before the selection committee of NEA, and only those applicants who attained a score of 80 or above shall qualify for further consideration for the position of GM. Further under Item No. III, Section 2, par. H of the same memorandum it provides that the list of applicants who passed the final interview shall then be transmitted by NEA to the EC board for perusal and selection of its GM.
For its part, the EC Board would then make a selection or choice from the list of qualified applicants transmitted by NEA, as to who would be the next GM.
From the above, it would appear that NEA, in the transmittal of the list of qualified applicants to the EC Board, is exercising a purely ministerial function and not a discretionary one. So that if there are more than one applicant who attained a score of 80 or above after the final interview then NEA has the ministerial duty to transmit the names of these applicants to the EC Board and not choose only one among the qualified applicants to indorse.
By choosing only one qualified applicant to endorse to the EC Board, as what had actually happened, despite reports that there are other qualified applicants to the position of GM then NEA exercised a discretionary act when what is required by its own memorandum is a ministerial one, thus acting beyond the limits of its authority.
As astutely observed by Atty. Isagani Liporada, a colleague in public service, NEA, by endorsing only one qualified applicant to the EC Board, seemed to have arrogated unto itself the power to select who would be the next GM of BENECO to the prejudice of the BENECO Board. This then might be the essential element for the allegation of overreach by NEA and the clamor for the inquiry by the Lower House.