(concurring in part; dissenting in part).
I concur in the portion of the opinion which holds that NMSA 1978, Section 10-11-22(C) (Cum.Supp.1986), allows Plaintiffs to do what they did, and in the portion of the opinion which holds that Plaintiffs did not hold temporary or part-time positions as defined by PERA Rule 400.20. I also agree with the discussion of the sham employment issue, and the constitutional issues raised.
I cannot, however, agree that equitable estoppel might be applied against PERB to determine that those Plaintiffs who worked for less than fifteen days can be credited with service despite the requirements of NMSA 1978, Section 10-11-14(A) (Cum. Supp.1986). I therefore dissent in that portion of the opinion.
A. EQUITABLE ESTOPPEL
1. New Mexico’s Test
New Mexico’s present test for the application of equitable estoppel can be traced back to 1951. See Westerman v. City of Carlsbad, 55 N.M. 550, 555-56, 237 P.2d 356, 359 (1951). The test is set forth as follows:
“The essential elements of an equitable estoppel as related to the party estopped are: (1) Conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; (3) knowledge, actual or constructive, of the real facts. As related to the party claiming estoppel, they are: (1) Lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such a character as to change his position prejudicially.”
Id. (quoting 19 Am.Jur. Estoppel § 42 (1939)); see also Regents of the Univ. of New Mexico v. Lacey, 107 N.M. 742, 745, 764 P.2d 873, 876 (1988); Cauble v. Beals, 96 N.M. 443, 445, 631 P.2d 1311, 1313 (1981); Capo v. Century Life Ins. Co., 94 N.M. 373, 377, 610 P.2d 1202, 1206 (1980); Augustus v. John Williams & Assocs., 92 N.M. 437, 440, 589 P.2d 1028, 1031 (1979); Stuckey’s Stores, Inc. v. O’Cheskey, 93 N.M. 312, 324, 600 P.2d 258, 270 (1979); State ex rel. State Highway Dep't v. Shaw, 90 N.M. 485, 487, 565 P.2d 655, 657 (1977); National Advertising Co. v. State ex rel. State Highway Comm’n, 91 N.M. 191, 193-94, 571 P.2d 1194, 1196-97 (1977); Las Cruces Urban Renewal Agency v. El Paso Elec. Co., 86 N.M. 305, 310-11, 523 P.2d 549, 554-55 (1974); State ex rel. State Highway Dep’t v. Yurcic, 85 N.M. 220, 223, 511 P.2d 546, 549 (1973); Kerr v. Schwartz, 82 N.M. 63, 66, 475 P.2d 457, 460 (1970); Yates v. Ferguson, 81 N.M. 613, 615, 471 P.2d 183, 185 (1970); Gray v. Estate of Williams (In re Will of Williams), 71 N.M. 39, 68-69, 376 P.2d 3, 23 (1962); South Second Livestock Auction, Inc. v. Roberts, 69 N.M. 155, 162, 364 P.2d 859, 864 (1961); Tapia v. City of Albuquerque, 104 N.M. 117, 122, 717 P.2d 93, 98 (Ct.App.1986). See generally 28 Am.Jur.2d Estoppel & Waiver § 35 (1966).
2. Estoppel Against the State
As a general rule, courts are reluctant to apply the doctrine of equitable estoppel against the state. Numerous New Mexico cases, however, recognize an exception to this rule and will apply estoppel against the state where “right and justice demand it.” Some courts follow the proposition that “ ‘[a] state cannot be estopped by the unauthorized acts or representations of its officers. It may be estopped only by an act of the legislature where the legislature possesses the sole power to bind it in the transaction in which an estoppel is alleged to arise.’ ” National Advertising, 91 N.M. at 191, 571 P.2d at 1196 (quoting Ross v. Daniel, 53 N.M. 70, 75, 201 P.2d 993, 996 (1949)). Other courts will not apply estoppel against the state unless there is a “shocking degree of aggravated and overreaching conduct.” Yurcic, 85 N.M. at 223, 511 P.2d at 549, quoted in National Advertising, 91 N.M. at 194, 571 P.2d at 1197.
3. The Majority’s Analysis
The majority opinion sets forth a three-part test for estoppel, citing to Green v. New Mexico Human Services Department, 107 N.M. 628, 629-30, 762 P.2d 915, 916-17 (Ct.App.1988). The opinion, however, does not establish how each element of the test has been met. I have particular difficulty seeing how the second prong of the test requiring that PERB had “knowledge or constructive knowledge of the true facts” has been met in this case. Id. I find nothing in the record showing that PERB representatives knew of the “true” interpretation of the statute when they talked with Plaintiffs. In addition, I do not believe we can, in every instance, charge an agency with constructive knowledge of the “true” interpretation or meaning of a statute it is to administer. This would render all internal administrative rulemaking and regulatory guidelines meaningless. While it is true that an agency’s interpretation of such statutes is given some deference, judicial interpretations conflict with agency interpretations frequently enough to render it impossible to charge an agency with this kind of knowledge.1
In addition, although the opinion suggests, citing to Green, that misrepresentations made innocently or by mistake will support the application of the doctrine of estoppel, I do not believe that this eliminates the “knowledge” prong of the test. The Green court relies on Stuckey’s Stores, Inc. v. O’Cheskey, 93 N.M. 312, 324, 600 P.2d 258, 270 (1979), stating that “representations that are contrary to the essential facts to be relied on, even when made innocently or by mistake, will support the application of the estoppel doctrine.” Green, 107 N.M. at 629, 762 P.2d at 916 (emphasis added). Stuckey’s arrives at this conclusion by relying on State ex rel. State Highway Department v. Shaw, 90 N.M. 485, 565 P.2d 655 (1977). The Shaw court held that a claim of estoppel would prevail against the state where it was clear that the state was adopting a position contrary to its earlier representations to the defendants, and that these representations, even though made innocently or by mistake, would support the application of estoppel against the state. Id. at 488, 565 P.2d at 658. The Shaw court purported to apply the Yurcic test claiming that estoppel is triggered when the “ ‘conduct ... is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert ...’” Id. (quoting Yurcic, 85 N.M. at 223, 511 P.2d at 549). The Shaw court, however, appears to apply only the first prong of the test and neglects to analyze the third prong which requires “knowledge, actual or constructive, of the real facts.” Yurcic, 85 N.M. at 223, 511 P.2d at 549.
Our supreme court has made clear, in cases after Shaw and Stuckey’s, that the test for equitable estoppel has not changed. See, e.g., Lacey, 107 N.M. at 745, 764 P.2d at 876; Cauble, 96 N.M. at 445, 631 P.2d at 1313; Capo, 94 N.M. at 377, 610 P.2d at 1206. In fact, in Cauble, the supreme court refused to apply the doctrine of equitable estoppel against a landowner when the third prong of the test — the requirement of knowledge of the real facts — was not met. 96 N.M. at 445-46, 631 P.2d at 1313-14.
4. Reasonable Reliance
The majority explains that the party seeking enforcement of estoppel must show that it lacked knowledge of the true facts in question and that it reasonably relied on the other party’s conduct to its detriment. The majority opinion cites to Trujillo v. Gonzales, 106 N.M. 620, 622, 747 P.2d 915, 917 (1987), for the proposition that an individual has no right to rely on oral representations made when the language of the applicable statute is clearly to the contrary. Section 10-11-14(A) and Rule 600.10 state in part, “in no case shall any member be credited with a month of service for less than fifteen days of service in any calendar month.” I think this language is sufficiently clear to render Plaintiffs reliance on any contrary representations made by PERB to be unreasonable. See also Taxation & Revenue Dep’t v. Bien Mur Indian Mkt. Ctr., 108 N.M. 228, 231, 770 P.2d 873, 876 (1989) (reliance of party seeking to assert equitable estoppel must be reasonable). In addition, our supreme court has previously held that an individual who “ignores highly suspicious circumstances ... cannot invoke the doctrine of estoppel.” Patten v. Santa Fe Nat. Life Ins. Co., 47 N.M. 202, 208, 138 P.2d 1019, 1023 (1943). As PERB explains, one plaintiff, typical of the other plaintiffs involved in this action, earned $230.77 for ten days of work before she “retired” from her job with the City of Belen. In return for this employment with the City of Belen, she claims entitlement to over $203,000 in additional retirement benefits. I believe this is suspicious enough to alert Plaintiffs that the advice received may be inaccurate or at least worthy of further investigation.
5. Policy Considerations
In addition to New Mexico law, I believe the recent United States Supreme Court opinion in Office of Personnel Management v. Richmond, 496 U.S. 414, 433, 110 S.Ct. 2465, 2476, 110 L.Ed.2d 387 (1990), cited in Wing Pawn Shop v. Taxation & Revenue Dep’t, 111 N.M. 735, 745, 809 P.2d 649, 659 (Ct.App.1991) (Hartz J., specially concurring), provides guidance. In Richmond, the Court held that erroneous written and oral advice given by a government employee to a benefit claimant could not give rise to estoppel against the government and entitle the claimant to monetary payment not otherwise permitted by law. Id. at 416, 110 S.Ct. at 2467. The Court reasoned that although mistakes occur, one can usually assume that government agents are conscientious and generally provide valuable free information to citizens who seek advice about certain government programs. In fact,
[t]he natural consequence of a rule that made the Government liable for the statements of its agents would be a decision to cut back and impose strict controls upon Government provision of information in order to limit liability. Not only would valuable informational programs be lost to the public, but the greatest impact of this loss would fall on those of limited means, who can least afford the alternative of private advice. The inevitable fact of occasional individual hardship cannot undermine the interest of the citizenry as a whole in the ready availability of Government information.
Id. at 433-434, 110 S.Ct. at 2476 (citation omitted). See generally Michael Braunstein, In Defense of a Traditional Immunity — Toward An Economic Rationale for Not Estopping the Government, 14 Rutgers L.J. 1 (1982). I find this reasoning to be persuasive.
Because I cannot agree that equitable estoppel might be applied against PERB, I respectfully dissent from that part of the majority opinion.
. American Jurisprudence explains that "the general rule is that it is essential ... that the party sought to be estopped should have had knowledge of the facts, or at least that he should have had the means at hand of knowing all the facts, or have been in such a position that he ought to have known them." 28 Am.Jur.2d Estoppel § 40 (1966) (footnotes omitted).