concurring.
After rejecting the hearing officer's recommendations, Director Walsh failed to enter any order within the period required by the statute, failed to issue any formal order for over two years, issued two unconditional 1i-cense renewals, and affirmatively stated to Schnell or his supervisor on more than one occasion that the matter was resolved in Schnell's favor. I would hold that these facts, collectively, amount to "assertion of a position" for purposes of the test regarding when estoppel may be invoked against the government.1
I agree with the court that rejection of the hearing officer's recommendations, without more, is not an assertion of the position that the case was being decided in Schnell's favor;2 the director was free to decide the case differently himself or to refer it to another hearing officer. Nor did issuance of two unconditional license renewals necessarily suggest anything more than that the matter remained under review. And I agree that the long period of delay after the director rejected the hearing officer's recommendation did not constitute an assertion.3 All of these occurrences, individually or collectively, can mean something other than that the case was being resolved in Schnell's favor.
But I cannot agree with the court that the director's statements to Schnell and Schnell's employer, considered in the context of all of the facts, do not constitute "assertions" within the meaning of our cases.4 By affidavit, Schnell's supervisor established that he had had a number of "conversations with Mr. Walsh in which [Mr. Walsh] indicated that he had decided that Mr. Schnell should be able to proceed with his career in the industry, without sanctions." With specific reference to a meeting in July 1994, that supervisor reported that he thanked Walsh for refusing to impose sanctions and that "Mr. Walsh responded that he just could not see taking away Mr. Schnell's livelihood, especially 'so late in the game,' or words to that effect, and that he was glad that the issue was behind Mr. Schnell." The state has not contested that these statements were made. In these cireumstances, the conclusion seems inescapable that the state asserted a position in this matter.
The court avoids that conclusion by relying on a case that is quite distinguishable from the present case, factually and legally.5 In In re Stephenson,6 an applicant for admission to the state bar argued that the bar should be estopped from denying him admission because he was misled into believing that he was eligible for reciprocity as the result of the state bar supplying him with only a part of the information (state statutory requirements) pertinent to bar admission and not providing him with other relevant material (a state bar rule).7
Stephenson is factually distinguishable because in the present case there is no dispute from the state that Walsh made the statements attributed to him by Schnell. Yet the *362state bar in Stephenson denied Stephenson's allegations and we decided the case on that distinguishing fact; "The Executive Director has further denied under oath that he furnished erroneous information to the applicant as to the requirements for admission. We thus find no merit to this contention." 8
More importantly, Stephenson is legally distinguishable from the present case. After disposing of Stephenson's claim on factual grounds, we went on to state the rule the court relies on today: "Furthermore, ... a state is not estopped to assert a result dictated by its rules, even if a state officer has made a contrary representation from the terms of the rules ... and caused reliance on such representation." 9 The "result dictated by its rules" in Stephenson was that a bar applicant was not entitled to admission by reciprocity under the facts of that case.10 And that remained so no matter what the applicant might have been told. But the rules in this case do not dictate any particular outcome for Schnell. Walsh, the division director charged with the responsibility of deciding Schnell's case, had the power to "decide the case upon the record ... with or without taking additional evidence."11 He was free to do exactly what he had told Schnell he had done: allow him to proceed in his career without sanctions.
It is true, as the court notes, that Walsh was under the statutory obligation to give the parties the chance to present oral or written argument before rendering his final decision,12 and that he did not do so. This procedural failure, however, should not form a basis for concluding that. the state did not make an assertion to Schnell.
Concluding that Schnell met the first part of the Wassink test, I would consider the other requirements of that case. While Schnell's reliance on the state's assertions appears reasonable to me, and there is evidence that he suffered some prejudice as a result, I do not believe that estopping the division from taking action in regard to Schnell's license "serves the interests of justice so as to limit public injury." 13 I reach this conclusion for the reasons the court sets out in its discussion of administrative delay: in a disciplinary proceeding in a heavily regulated profession, it would be contrary to the public interest to remedy the agency's delay by allowing a violation to go undisciplined.14
For this reason, and because I agree that the sanctions decision should have been made {and should now be made) with current information, I agree with the court's remand of this case for a hearing to consider current evidence relevant to the issue of sanctions.
. See Wassink v. Hawkins, 763 P.2d 971, 975 (Alaska 1988) (citation omitted).
. See Op. at 356.
. See id. at 357-358.
. See id. at 357-358.
. See id. at 358.
. 511 P.2d 136 (Alaska 1973).
. See id. at 143.
. Id.
. Id.
. See id. at 138-42.
. AS 44.62.500(c).
. See Op. at 358.
. Wassink v. Hawkins, 763 P.2d 971, 975 (Alaska 1988) (citation omitted).
. See Op. at 357.