No legal bar to Lotilla’s being energy chief–DOJ

THE Department of Justice (DOJ) has found no legal impediment to the appointment of lawyer Raphael Perpetuo “Popo” M. Lotilla as Energy Secretary.

In a legal opinion released on Thursday, the DOJ headed by Justice Secretary Jesus  Crispin Remulla said Lotilla’s appointment is valid since an independent director  does not fall within the list of those prohibited by the Department of Energy Act of 1992. The Palace earlier announced that Lotilla’s appointment as energy secretary was put on hold pending clarification of his employment status.

In particular, the Palace said  it would  have to determine whether an independent director is considered an officer of a company as contemplated under Section 8 of RA 7638 or the Act Creating the Department of Energy.

The said provision states that: “No officer, external auditor, accountant, or legal counsel of any private company or enterprise primarily engaged in the energy industry shall be eligible for appointment as Secretary within two (2) years from his retirement, resignation, or separation therefrom.”

Lotilla is currently serving as  independent director of Aboitiz Power Corporation, and that of ACE Enexor, the oil and gas company of the Ayala group.

“The Department of Justice believes that the nomination of Raphael ‘Popo’ Lotilla as the new Secretary of Department of Energy is valid and lawful,” the DOJ declared. It added that “the novel concept of an independent director was not  contemplated” by RA 7638.

The DOJ added that even its scrutiny of subsequent laws such as Revised Corporation Code, Securities Regulations Code and the Code of Corporate Governance, showed that an independent officer is not an officer based  on the nature, duties, functions and responsibilities vis-à-vis the corporation he serves.

“It is sui generis (of its own kind) in character,” the DOJ pointed out.

Furthermore, the DOJ said even the articles and by-laws of Aboitiz Power Corporation and Ace Enexor adopt the statutory concept of an independent director.

“Thus, it is clear that an independent director like Lotilla does not fall within the proscription under Section 8 of R.A. 7638 against an officer, external auditor, accountant or legal counsel of any private company or enterprise primarily  engaged in the energy industry,” the DOJ added.

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