Former Executive Director of the National Commission for Culture and the Arts (NCCA) Malou Jacob is said to have known that her removal from her post was imminent, in view of the decision of the Civil Service Commission (CSC) to disapprove the renewal of her temporary appointment. Jacob, who lacks civil service eligibility, was notified by the NCCA that she had to clear out at once while she was out of the country, representing the Philippines at the 5th World Summit on Arts and Culture.
In an e-mail interview, Adelina Suemith, whom the agency designated as Officer-in-Charge (OIC) for the position of Executive Director, said, “[Jacob was aware] of the disapproval [of the CSC] and was verbally cautioned that her trip abroad might no longer be ‘official’. She herself said before she left for Australia that she will abide by the Board’s decision.”
Regarding the timing of Jacob’s removal, Suemith said, “It may appear that there was not enough time given to her since she was abroad, but she was aware of what could possibly happen after the CSC letter.” Based on her understanding, the disapproval of Jacob’s renewed appointment, as well as Jacob’s removal, would take effect 15 days after September 22, the date on which the NCCA received the letter. According to Suemith, “This [meant] the position and its responsibilities should be assumed by a qualified officer by October 5. On October 6, [Jacob] was officially cut off.” The Commissioners then had to fill the vacuum so that the agency could continue its operations.
Jacob has stated that while she respects the decision of the Commissioners, she has “no idea” why they acted the way they did. She said she was informed of her removal on October 4. A document obtained by The Pro Pinoy Project shows that Suemith was made OIC on the same date, after a special meeting of the Board.
‘Caught in technicalities’
The Commission had appointed Jacob, a multi-awarded writer and director and veteran administrator, as Executive Director on March 12, 2010 for the period of one year, and had initially sought the renewal of her appointment for another year in spite of her ineligibility.
“[Jacob] is a very kind and peaceful person. I don’t think there is anyone who cannot work with her. The fact that the Board endorsed her second appointment and was even willing to extend her [term] until her retirement in 2012, is clear indication that she was acceptable to the NCCA,” Suemith said. The issue, she added, was not so much Jacob’s performance as it was accountability over government resources, and the NCCA was just “caught in technicalities”.
Suemith cited some of the consequences of Jacob’s lack of civil service eligibility: “The resident auditor would no longer honor or recognize her authority to disburse agency funds. She could not be bonded (a requirement for disbursement purposes), since the bond requires a CSC-approved appointment. She could not also appoint another officer to do this function since her authority [was] in question. Because of [these], the Board had to decide immediately on the matter.”
Suemith, who is identified in the NCCA web site as the Chief of the Program Monitoring and Evaluation Division, said she did not apply to be OIC, and does not receive additional remuneration from acting in this capacity. A Certified Public Accountant (CPA) and a holder of a master’s degree in sociology, Suemith is eligible for civil service and has served the cultural agency for 16 years.
The process of choosing an Executive Director would seem to be deeply fraught one for the NCCA, as revealed in the minutes of the regular commission meeting held on March 30 this year.
Even if it is the Board of Commissioners that appoints the Executive Director, it has apparently become customary for the President to send the Board a desire letter indicating his or her favored candidate. During the March 30 meeting, Deputy Executive Director Marlene Ruth Sanchez recalled that this has been the practice from 1992 to 2010, implying that the Board tended to accede to this expression of presidential desire. This goes against the grain of Republic Act No. 7356, the law that established the NCCA, which provides, in part, that Filipino national culture should be “independent, free of political and economic structures which inhibit cultural sovereignty”.
Moreover, two unresolved issues surfaced at that meeting: first, whether the position of Executive Director is classified as part of the Career Executive Service (CES); and second, whether the Executive Director has a fixed term of office or serves at the pleasure of the Board of Commissioners.
The term of office was not discussed in detail, but with regard to the classification of the position, Suemith at the time stated that the CES Board (CESB) had declared the position of Executive Director as falling under the CES. The CSC, on the other hand, did not give a response specific to the NCCA as an institution, and instead provided copies of circulars and resolutions of court cases related to eligibility.
The CESB later adopted Resolution No. 945 on June 14. Hewing to the Supreme Court decision in the case of Civil Service Commission v. Court of Appeals and Philippine Charity Sweepstakes Office, the resolution stated that CES coverage would be limited to positions requiring presidential appointments. This means that the NCCA Executive Director is not covered by the CESB.
In the case of Jacob, Suemith asserted that “the normal selection process was not followed”, as the NCCA had received a desire letter from former President Gloria Macapagal-Arroyo. Precisely what this normal selection process entails is now under review, Suemith acknowledged.
“The criteria and process are being finalized,” she said. “Hopefully, the new [Executive Director] will be announced in January or February of 2012.”
When asked if the NCCA was considering proposing a set of equivalency criteria, a move suggested by Jacob in a statement that she circulated online, Suemith said the CSC had told the NCCA to submit its position for study. “Perhaps in the near future, when the new [Executive Director] is in place, we can begin to attend to [this]. Certainly, this is not something that can be resolved in a short period considering the huge bureaucracy. But Ms. Jacob’s case can be used to convince the CSC to review its policies.”
Career or non-career?
At present, it seems that the NCCA considers the Executive Director position as falling under the career service, which in Executive Order No. 292, also known as the Administrative Code of 1987, is characterized by the following: “(1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure.” This means, among others, that the holder of the position can stay until retirement, unless removed for just cause.
Why this is so cannot be determined at the moment, especially given that the NCCA charter provides that each non-ex-officio member of the Commission has a three-year term of office, and may not serve more than two consecutive terms.
The Supreme Court has defined the meaning of “ex-officio” in the 1991 case Civil Liberties Union v. Executive Secretary: “The term ex-officio means ‘from office; by virtue of office.’ It refers to an ‘authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position.’ Ex-officio likewise denotes an ‘act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office.’ An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment.”
The confusion may stem from two possibly conflicting sections of the Implementing Rules and Regulations (IRR) of Republic Act No. 7356. Per Section 38, the position of Executive Director seems to be a career service position, as qualifications are supposed to be set in conjunction with existing civil service regulations. Section 36, however, provides that the Executive Director is appointed by the Board of Commissioners based on open nominations, which would make it a non-career service position, because it has a fixed term.
The position would also be non-career if considered a primarily confidential one, in light of the proximity rule applied by the Supreme Court in Civil Service Commission v. Nita P. Javier.
A bill now pending in the Senate could prove useful to the NCCA and other national cultural institutions in the event that it is passed into law.
Authored by Sen. Manny Villar, Senate Bill No. 1265 seeks to encourage artists to pursue civil service careers by recognizing, in law, that their talents should be the principal bases for their selection, appointment, and promotion, and by establishing an Artists Career Service (ACS), a closed career system tailored to the special characteristics of the artistic profession. Records indicate that Villar has been filing this bill at least as far back as the 13th Congress, when he first became Senator.
The ACS would cover personnel who have been recognized as having talent in at least one cultural or artistic field, and who occupy government positions directly involved with the creation, performance, presentation, and development of work in music, literature, visual arts, film and media arts, theater, and dance. Among the employees that would be brought into its embrace are those belonging to the NCCA and the Cultural Center of the Philippines (CCP).
Incidentally, Presidential Decree No. 15, which created the CCP, specifically exempts officials and employees of the institution from coverage of civil service rules. Inquiries sent to the CCP and to the CSC regarding how this provision is observed in the current regulatory climate, if at all, have so far met with no response.
Jacob had served in government with the Cultural Center of the Philippines (CCP) for nine years, starting in 1987, as the head of its Visual, Literary, and Media Arts Department, before she joined the NCCA as Deputy Executive Director in 2008.
Information from the Senate web site shows that Villar’s bill was read and referred to the Committee on Civil Service and Government Reorganization, the Committee on Finance, and the Committee on Education, Arts, and Culture on August 31, 2010. The last Committee is headed by Sen. Edgardo J. Angara, one of the authors of the NCCA charter and a member of the NCCA Board of Commissioners.
Neither Villar nor Angara could be reached for comment for this article.
*Editor’s note (December 9, 2011; 9:12 AM GMT +8): This article has been slightly modified to reflect the fact that Adelina Suemith did not apply to be OIC Executive Director.