dissenting.
Because the Board’s approval of Dukes’s prior service and calculation of retirement benefits were not ultra vires acts, the Board is estopped from reducing Dukes’s pension after he justifiably relied on the Board’s decision to his detriment. The majority decision, which is inconsistent with this Court’s prior interpretations of “ultra vires,” will result in a manifest injustice in this case, just the type of result that the doctrine of estoppel is designed to avoid.
As this Court stated in City of Summerville v. Ga. Power Co.,5
[although a municipality or other governmental agency cannot be estopped by its ultra vires acts, there is nevertheless a broad distinction to be observed between an irregular exercise of a granted power, and the total absence or want of power, and the rule is that it may be estopped, as right and justice may require, where the act or contract relied on to create the estoppel was within its corporate powers, although the method of exercising the power was irregular or unauthorized.
In this case, we have at most the irregular, or even unauthorized, exercise of a granted power. Indisputably, the Board did have the authority to calculate Dukes’s pension based on his present and prior service, and more specifically, to determine whether his prior service could be included in the calculation.6 The majority cannot claim that *555the Board had not been conferred the power to determine whether an employee’s prior service would be considered in the calculation of that employee’s retirement benefit. The Board may not be authorized to waive the five-year procedural requirement for applying for recognition of prior service, as it did in this case,7 but it without question has the authority to determine whether an applicant’s prior service will be recognized. The Board’s decision to recognize Dukes’s prior service may have been improper, but it was not ultra vires.
The majority’s error can be illustrated by an analysis of the reason for the prohibition against the application of estoppel in the case of an ultra vires act. Estoppel is an equitable doctrine that is based on the justifiable reliance of the promisee, such that its application depends in part on the reasonableness of the promisee’s reliance. A promisee is not entitled to rely on an act by a public official in the exercise of a power that has not been conferred to that public official, because “all persons must take notice”8 of the legal powers of public officials. Thus, it is patently unreasonable, and unjustifiable, for a person to rely upon a public official’s exercise of an unconferred power.
In this case, however, Dukes’s reliance upon the decision of the Board to recognize his prior service was entirely reasonable because it was expressly within the Board’s conferred power to determine his years of qualified service, including prior service, and to assess the retirement benefit to which he was entitled based on those years of service. Just as in Quillian v. Employees’ Retirement System of Ga.:9
[a] 11 parties to this case acknowledge that [Dukes] did everything within his power to ascertain his retirement benefits prior to the time he submitted his resignation; that the retirement system calculated his benefits; that he relied expressly upon this calculation [in his decision to retire];... that the calculated benefits were paid to him for a period of time after his retirement; and that his act of retirement was final and irreversible.
The majority’s decision is simply incompatible with Quillian. If the Board’s decision in this case to award an earned pension by waiving the five-year procedural requirement, whether mistakenly or otherwise, is ultra vires, then surely so is a decision to award an *556unearned, pension that was based on a miscalculation of an employee’s years of service.10 The Board is certainly no less authorized to recognize Dukes’s prior service than it was to award Quillian a pension for service that had not been rendered.11 Surely, greater harm is inflicted on the public by the improper allocation of public funds to an unearned pension than by the award of an earned pension through the waiver of a procedural limitation on the recognition of prior service.
Decided April 25, 2006 Reconsideration denied May 19, 2006. Balch & Bingham, T. Joshua R. Archer, Michael J. Bowers, David G. Michell, for appellant. LindaK. DiSantis, Pamela F. Everett, Debra G. Alford, Robert N. Godfrey, for appellees.Because the Board’s recognition of Dukes’s prior service was not an “ultra vires” act, and because Dukes justifiably relied on the Board’s decision to his detriment, the Board should now be estopped from reducing Dukes’s pension. Accordingly, I dissent.
I am authorized to state that Presiding Justice Hunstein and Justice Carley join in this dissent.205 Ga. 843, 846 (55 SE2d 540) (1949).
See § 6-222 (k) (1) of the City of Atlanta Code of Ordinances - Pensions. See also Arneson v. Bd. of Trustees, 257 Ga. 579, 580-581 (361 SE2d 805) (1987) (“The duties of the retirement system include the assessment and calculation of entitlements. Even if the computation here was in error, nevertheless, it was not ultra vires.”).
Dukes’s application was originally rejected by the Board for the failure to meet the five-year procedural requirement, but was later accepted upon further consideration. See majority opinion, p. 551.
Citizens Bank &c. v. Rockdale County, 152 Ga. 711, 720 (111 SE 434) (1922).
259 Ga. 253, 254 (4) (a) (379 SE2d 515) (1989) (emphasis in original).
See, e.g., Quillian, 259 Ga. at 254.
The case of Miller v. Clayton County, 271 Ga. 135 (518 SE2d 402) (1999) is not applicable here. In that case, this Court properly held that a retirement board’s decision to award entirely unearned pensions to employees that had no right to an employee pension was ultra vires. There is no dispute that Dukes earnedhy service the exact pension that was originally awarded.