BENECO comment on the OGCC opinion

August 22, 2021 Metro BLISTT

The OGCC opinion is merely an opinion. It does not bind the courts, the Committee on Energy of the House of Representatives and BENECO. And not because the opinion came from the OGCC that such opinion becomes absolutely correct.
As the congressional hearing of the Committee on Energy on August 18, 2021 put it, the OGCC opinion will only be as good to the ones who brandish it. No one can be compelled to accept an opinion.
The OGCC opinion said: That the NEA BOA faithfully complied with NEA Memorandum No. 2017- 035 and NEA Memorandum No. 2018-04 when it issued NEA BOA Resolution No. 2021-47.
The opinion said that the action NEA took was justified since under PD 269, as amended by RA 10531, the NEA is empowered “to exercise such powers and do such things as maybe necessary to carry out the business and purposes for which the NEA was established or which from time to time may be declared by the Board of Administrators as necessary, useful, incidental or auxiliary to accomplish such purpose.”
But BENECO disagrees:
(1) The exercise of supervisory powers is not absolute. The NEA BOA cannot just set aside the mandate of Chapter III, Section 3, of NEA Memorandum No. 2017-035 which says as follows: 3. Selection. From the list of names forwarded by NEA, the EC Board shall select the GM of their choice.
In the event that the Board rejects all prequalified applicants, a Board Resolution shall be submitted to NEA
containing said valid reason(s) for such rejection which shall be evaluated, and if found reasonable the entire
selection process may again be undertaken at the expense of the EC.
However, if the reasons given are unreasonable, the NEA shall appoint from among the pre-qualified applicants. The EC Board shall then be informed of such appointment.
(2) The NEA BOA did not provide any justification why it only endorsed the candidate with the highest score in the final interview. Neither did it provide an extremely necessary nor any compelling and justifiable reason why it decided to endorse only one candidate.
(3) The supervisory power of the NEA over ECs come in the form of the rules and memoranda it issues including the rules on the selection of the GM. Such rules have the force and effect of law. All parties affected by such rules, including the NEA BOA, are bound to follow such rules. The NEA BOA cannot be given a license to violate such rules at its own whim and caprice.
(4) lt is pretty obvious that the intent of NEA Memorandum Nol. 2017 – 035 is that the NEA performs the selection process but the EC, through the BOD, shall be the one to decide, choose and select the GM. The NEA promulgated its rules on selection and no amount of police power would dissuade the fact that such rules must be followed to the hilt, particularly when any attempt to tweak the same would prejudice the rights of another.
The OGCC opinion further said: “BENECO-BOD’s reliance upon NEA Memorandum No. 2017-035 implicitly concedes that the NEA BOA exercises supervisory powers over the actions of the Board when it chose to recommend to NEA a department Manager to the vacant position of General Manager, who was, supposedly compliant with the
requisites provided under paragraph (b) of NEA Memorandum No. 2017-03.
In addition, when Engineer Licoben underwent the regular process of hiring prescribed by NEA rules and regulations, he freely submitted himself to its outcome, whether favorable or unfavorable.
When he failed to approximate the average score of his competitor by a mile after he presented himself under the rigorous examination of the Selection Committee composed of NEA members, pursuant to Memorandum No. 2018- 004, there should be no occasion for him to complain, when he was found wanting when compared to the standards set for the position vis- a- vis his lawyer competitor.
When he failed to approximate the average score of his competitor by a mile after he presented himself under the rigorous examination of the Selection Committee composed of NEA members, pursuant to Memorandum No. 2018-004, there should be no occasion for him to complain, when he was found wanting when compared to the standards set for the position vis- a-vis his lawyer competitor. “But BENECO disagrees: (1) lndeed, when the BOD chose Engr. Licoben, it was pursuant and in conformity to NEA Memorandum No. 2017-035 that provided two options for the selection of a GM – one is through a publication of the vacancy and two, the option to choose from among the Department Managers (in this case, AGM) to become the GM.
But such submission to NEA Memorandum No. 2017-035 does not mean that Engr. Licoben cannot complain since the basis of his complaint lies on a very solid legal ground provided by NEA Memorandum No. 2017-035 itself. His complaint on why was he not included in the endorsement by the NEA BOA to the BENECO BOD is a legitimate gripe that has a sound legal basis. The OGCC opinion said when Engr. Licoben submitted himself.