Thursday, August 29, 2013

GIFT CHECK: SEC Office Order No. 394

By Obiter07

At a time when we see profligate spending and scams using the people’s money, it is encouraging to see one government office shunning even the appearance of impropriety.  The SEC, in Office Order No. 391 dated 1 July 2013, has established a policy prohibiting the solicitation, acceptance and receipt of gifts:


Section 1.  SEC officials and employees shall not, directly or indirectly, solicit, accept or receive any gift and/or benefit for themselves or for others from the following:

“Section 2.  The following are EXCEPTIONS to Section 1;

a)        Parties, counsel and their agents;

b)      Corporations, partnerships, associations and their agents;

c)      Suppliers and contractors, and their agents; and

d)      Any member of the public transacting business with the Commission.”

The policy is iron-clad. One would think there may be loopholes but the exceptions are likewise clearly defined:

“Section 2.  The following are EXCEPTIONS to Section 1;

a.       Gifts that may be exchanged between and among SEC officials and employees appropriate to the occasion in which it is given such as Christmas or birthday celebrations; provided that, these gifts are not given in anticipation of, or in exchange for a favor and do not exceed P2,50O in value;

b.      Contributions/assistance from the Commission, fellow officials and employees in cases of death, illness, calamities and other similar emergencies;

c.       Gifts and/or benefits received by the Commission as an institution from other offices, organizations or individuals not covered under Section 1 hereof including grants and donations which are aimed at sustaining or enhancing SEC programs and services, as well- as gifts and benefits for official functions/events like Christmas, Labor Day, Founding Anniversary, Independence Day Celebrations; provided that, the gifts and/or benefits that were delivered in the work place and valued at Ten Thousand Pesos (P10,000.00) or more shall be recorded in the Registry Book of Gifts to be maintained and kept in the custody of the Assistant Director of the General Services Division of the Human Resources & Admin. Department (“GSD-HRAD");

d.      Gifts or cash awards given by the Commission to SEC officials and employees during Anniversary, Christmas celebrations and other related official or   milestone events and those covered by an appropriate Collective Negotiation Agreement;

e.       Gifts that may be exchanged between and among members of the Inter-Agency Committees and other organizations to which the SEC is a member, provided that gifts received amounting to Five Thousand Pesos (P5,000.00) or more shall likewise be recorded in the Registry Book of Gifts by the Assistant Director of the Gso-HRAD;

f.       Performance-based cash rewards, scholarship grants, and similar benefits granted to SEC officials and employees by other government agencies, private institutions, or national or international organizations; and

g.      Unsolicited gifts or  tokens of nominal or insignificant value offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage in accordance with Section 14 of Republic Act No. 3019 and Section 3 (d) of RA 6713.” [Underscoring supplied]

The last item above may seem to provide an avenue for token gifts from private parties but even this is defined to be a gift the value of which “should not exceed Five Hundred Pesos (P500.00)” (Part I, Definition of Terms).  And if someone is creative enough to disguise the gift as something for sale, this will still be caught under the policy.  A gift is defined as “a thing disposed of gratuitously, in favor of another, and shall include a simulated sale, or a disposition onerous to the giver and/or unduly beneficial to the recipients.”  A benefit “refers to a right, privilege, entertainment, exemption or any other similar act of liberality in favor of another.”

Neither can an SEC official “pad” the fees due them or the office.

“Section 3.  In the course of the performance of their official functions, SEC officials and employees shall not accept any fee or remuneration beyond what they are legally entitled to receive in their official capacity in accordance with law.  However, they may receive plaques, awards, certificates, souvenirs or other tokens of appreciation or gratitude as appropriate to the occasion/ceremonies in which it is made, provided that such plaques, awards or certificates will not be perceived as intended to influence SEC officials and employees in the performance of their official functions.” [Underscoring supplied]

What happens if a party persists and sends a gift?  Not all is lost, as this will end up with charitable organizations or the indigent.

“Section 4.  All other gifts not mentioned in Sections 2 and 3 hereof shall not be accepted and shall be immediately returned to the giver.  In circumstances where it is considered inappropriate or impractical to return said gifts (e.g. perishable goods), or where the giver/sender is nowhere to be found despite diligent inquiry, the SEC official or employee concerned shall immediately turn over the same to the Asst. Director of GSD-HRAD, who shall acknowledge the same and record such gifts in the Registry Book of Gifts and dispose the same in the name of the Commission in favor of charitable organizations, schools, or any other appropriate institutions or organizations including indigent families.” [Underscoring supplied]

Any violation will be dealt with in accordance with applicable law, rule or regulation as the Order only serves to supplement existing laws, rules and regulations on giving and accepting gifts and/or benefits (Part III, Penalties).  The Order specifically mentions that it was established in compliance with the 1987 Constitution and the following laws:

1.      R.A. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees),
2.      R.A. 9485 (Anti-Red Tape Act of 2007),
3.      R.A. 3019 (Anti-Graft And Corrupt Practices Act),
4.      Secs. 46 (a) and (b)(9) Title I, Subtitle A, Chapter 5, Book V, Executive Order No. 292 (1987 Administrative Code),
5.      P.D. 46 (Making It Punishable For Public Officials And Employees To Receive, And For Private Persons To Give, Gifts On Any Occasion, Including Christmas), and
6.      SRC Rule 6.2 (6)(E)(i) of the Implementing Rules and Regulations of the Securities Regulation Code.

It may be better to give than to receive. But both are no longer allowed at the SEC as no party can give, and no SEC official can receive, unauthorized gifts and/or benefits.