FACED with a second suspension order, four commissioners of the Energy Regulatory Commission (ERC) have asked the Court of Appeals to stop the Office of the Ombudsman from suspending them for three months for simple misconduct for tolerating Manila Electric Company’s alleged misuse of bill deposits.
In their 41-page petition, ERC Commissioners Alfredo S. Non, Gloria Victoria C. Yap-Taruc, Josefina Patricia M. Asirit and Geronimo D. Sta. Ana said the Ombudsman erred in holding them guilty in allegedly allowing the commingling of the bill deposit with the capital or operation cost of Meralco despite its finding that they are not criminally liable for estafa.
Contrary to the findings of the Ombudsman, the commissioners said they did their part to protect the public interest by issuing draft rules to govern the monitoring and reporting process of bill deposits.
Likewise, the petitioners argued that the Ombudsman’s suspension order is tantamount to interference in the rule-making authority of ERC.
They insisted that the complainant, National Association of Electricity Consumers for Reforms, Inc. (Nasecore), failed to present substantial evidence to prove that they violated their duty as commissioners that would warrant their suspension.
Besides the issuance of a temporary restraining order (TRO) to enjoin the implementation of their suspension, the petitioners also asked the CA to set aside the Ombudsman’s findings against them.
“Aside from the fact that there was no evidence presented that there was “misuse” of bill deposit, the Ombudsman’s finding that petitioners “tolerated the misuse by allowing its commingling” is contrary to or inconsistent with her Resolution dismissing the criminal aspect of NASECORE’s complaint,” the petitioners said.
They noted that resolution of the Ombudsman effectively declared that the bill deposit is not held in trust because it is considered as a loan given that the relationship between the consumers and Meralco is governed by creditor-debtor relationship.
They pointed out that, by declaring the bill deposit in the nature of a loan – the relationship between the distribution utility and the consumers is deemed that of a debtor and creditor – it follows that the distribution utility can use the said bill deposit and commingle the same with its other funds.
“If the Ombudsman is of the view that a loan was created between Meralco and its consumers on the bill deposit, how can it then conclude that petitioners ‘tolerated’ its “misuse” when her characterization thereof betrays any act of misuse?,” the petitioners asked.
“Indeed, as the debtor of the money used for bill deposit, MERALCO is allowed to use it or commingle it with its other funds because when ownership over a thing is transferred, the owner has all the rights to enjoy or dispose it,” they added.
Furthermore, they argued that the nature of bill deposits as a guarantee for the payment of bills is not lost or destroyed by commingling with other funds of distribution utilities.
“Even if the bill deposit is commingled with other funds, the consumer can always ask for its refund provided all bills have been paid,” they claimed.
In a 14-page resolution issued last May 18, Graft Investigation and Prosecution Officer III Cherry Bautista-Bolo recommended the suspension of the four ERC commissioners based on the syndicated estafa case filed by Nasecore.
The group accused the ERC commissioners of allowed the unauthorized use by Meralco of the bill deposits of customers, and the unjust fixing of its interest rates and the non-crediting thereof in favor of the consumers.
While the Ombudsman found the respondents not liable for estafa or misappropriation of funds relative to the management of bill deposits, it held that the four ERC commissioners failed to strictly implement the rules defining the nature of bill deposits as “mere guarantee in payment of bills” which must be returned upon termination of the distribution utilities’ (DUs)’ service.
Nasecore projected the total consumers’ deposits as now hitting P61.36 billion from 2006 to 2016, but Meralco accounted for the balance of only P26.5 billion in its financial statement.
Thus, the group said the consumers have been robbed a total of P34.84 billion or more, considering that the amount will still increase after due accounting by the ERC and Commission on Audit (COA) to determine the actual amount of accrued compounded interest earned by the bill
deposits.
The ERC commissioners also branded as mere “speculation” its findings that they failed to strictly implement the rules on bill deposit.
Had the Ombudsman reviewed their counter-affidavits, the ERC commissioners said the Ombudsman would have seen the attached draft “Rules to Govern the Monitoring and Reporting Process of Bill Deposits” that they formulated.
Under these guidelines, the petitioners seek to ensure the proper accounting and reporting by the distribution utilities of the bill deposit.