I dissent from the majority’s decision to reverse and remand for an award of benefits. In my opinion, this case should be reversed and remanded for additional findings of fact.
I agree with the majority to the extent that a claimant’s reliance on an agency misrepresentation may be the basis for awarding unemployment benefits. In Foote’s Dixie Dandy v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980), the supreme court abandoned the principle that the State can never be estopped by the actions of its agents. Estoppel is not a defense that should be readily available against the State, but neither is it a defense that should never be available. Id. Estoppel should only be applied when there is clear proof of an affirmative misrepresentation by the agency, and there must be substantial evidence of a citizen’s reliance upon the actions or statements of an agent. See Arkansas Dep’t of Human Servs. v. Estate of Lewis, 325 Ark. 40, 922 S.W.2d 712 (1996).
In this case the appeal tribunal specifically found, “The workers were told they would be entitled to unemployment benefits based on information received from the local office of the department.” The Board adopted the decision of the tribunal, and thus made the same finding. However, while this finding supports the conclusion that there had been a misrepresentation by the agency, the Board made no finding as to whether any of the claimants relied on the misrepresentation in opting for the severance package. Estoppel will protect a citizen only to the extent that he relied upon actions or statements by an agent of the State. Foote’s Dixie Dandy v. McHenry, supra.
I acknowledge that some of the claimants indicated in their testimony that they took the severance package in reliance on assurances that they would be eligible for unemployment benefits. However, it is for the Board to judge the credibility of witnesses, see Williams v. Director, 79 Ark. App. 407, 88 S.W.3d 427 (2002), and the Board made no finding as to the veracity of this testimony. Moreover, some of the claimants gave other reasons for accepting the package. Neither Mr. Mynatt nor Mrs. Mynatt testified that they took the package in reliance on the agency’s misrepresentation.
The long-standing rule is that when an administrative agency fails to make a finding upon a pertinent issue of fact, the courts do not decide the question in the first instance. Alcoholic Beverage Control Bd. v. Hicks, 19 Ark. App. 212, 718 S.W.2d 488 (1986). In such cases, the cause is remanded so that a finding can be made on that issue. Id. Because the Board failed to make any findings on the pertinent issue of whether there was any detrimental reliance on the part of any of the claimants, I would reverse and remand with directions to make such findings.
D. Vaught, Judge,dissenting. The majority has reversed these unemployment cases and ordered an award of benefits by applying the doctrine of equitable estoppel. This theory was not raised below, no findings were made by the Board of Review on the necessary elements, and the appellants have not argued estop-pel as a basis for reversal. In order to reach its decision, the majority has acted as both an advocate for the appellants and the finder of fact. Because I believe that those actions are beyond our authority and that the findings of the Board of Review are supported by the evidence, I would affirm.
As Judge Robbins points out in his dissenting opinion, the doctrine of equitable estoppel has been held to be available to apply against a state agency since the supreme court’s decision in Foote’s Dixie Dandy v. McHenry, 270 Ark. 816, 607 S.W.2d 373 (1980). It was first applied in an employment security case by this court in Rainbolt v. Everett, Director, 3 Ark. App. 48, 621 S.W.2d 877 (1981), where we reversed and remanded for further findings on the elements of estoppel. The doctrine has been sparingly used in the ESD context since then. See Rankin v. Director, 82 Ark. App. 575, 120 S.W.3d 169 (2003); Wall v. Director, 83 Ark. App. 424, 128 S.W.3d 480 (2003); Wells v. Everett, Director, 5 Ark. App. 303, 635 S.W.2d 294 (1982); Jones v. Everett, Director, 4 Ark. App. 169, 629 S.W.2d 305 (1982), reversed by Everett, Director v. Jones, 277 Ark. 162, 639 S.W.2d 739 (1982).
In each of the cases cited above, there was a discussion of the elements necessary to establish estoppel:
(1) [t]he party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel had a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and, (4) he must rely on the former’s conduct to bis injury.
Wall, supra at 427, 128 S.W.3d. at 481. The majority in the case at bar does not mention the elements and does not recite any findings to support them. Judge Robbins, in his dissent, suggests that the proper disposition would be to remand to the Board of Review for further findings on the elements of estoppel. I disagree.
I believe that the case should be affirmed based on the reasoning of the supreme court in Everett, Director v. Jones, supra. In that case the Arkansas Supreme Court reversed the court of appeals’ decision, which had remanded to the Board of Review for an award of benefits based on findings of estoppel. The claimant had argued estoppel on appeal based on an allegation made in her notice of appeal that she had relied on information from the ESD about the timeliness of her actions seeking employment. This court, after discussing the elements of estoppel, held that the agency should be estopped to deny benefits and remanded for an award. See Jones v. Everett, Director, supra.
On review, the supreme court noted that the only evidence in the record of the agency’s action with regard to the claimant was in the notice of appeal. The court cited Foote’s Dixie Dandy, supra, for the proposition that estoppel could apply to state agencies but reasoned:
However, this doctrine is to be applied against the State only when there is substantial proof and a compelling reason. Here there was no substantial proof of the only allegation of affirmative misconduct. That allegation was made in respondent’s notice of appeal quoted above. In addition, the State was never given the opportunity to submit evidence to rebut the allegation.
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The other reasons given by the Court of Appeals for applying the doctrine do not involve allegations of affirmative misconduct. They can be summarized as findings of unconscientiousness on the part of the administrative agency. Likewise, these issues were not fully developed below and there was no substantial proof of lack of unconscientiousness. Certainly, we do not intend that the Foote’s doctrine be extended to a nebulous and indefinite situation where the agent of the State has not clearly caused the claimant to believe that nothing more is necessary other than to return on the assigned date.
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Before the State is estopped from applying this law there must be substantial evidence that the citizen relied upon actions or statements by an agent of the State.
Everett, Director v. Jones, supra at 166-67, 639 S.W.2d at 741.
The court then concluded that the evidence did not support estoppel and reversed the court of appeals and affirmed the Board of Review. In the case at bar the Board of Review made no findings beyond one nebulous sentence regarding an agency action which might form the basis for estoppel. There were no findings that the claimants relied on the statement, and there was testimony of only one claimant that could have been construed as alleging reliance.
Because there was substantial evidence to support the findings of the Board of Review denying benefits to these claimants pursuant to our holding in Billings v. Director, 84 Ark. App. 79, 133 S.W.3d 399 (2003), and because the issue of estoppel is not appropriately before this court, I would affirm.