The opinion
Grey, P.J.,
dissenting. I respectfully dissent. The rule that equitable estoppel will not be applied against the state is only corollary to the doctrine of sovereign immunity which, of course, has been rejected by the Ohio Supreme Court. See
Schenkolewski
v.
Cleveland Metroparks Sys.
(1981), 67 Ohio St. 2d 31 , 21 O.O. 3d 19, 426 N.E. 2d 784 .
Sun Refining, supra,
recites the language of promissory estoppel, but that case is particularly inappropriate here, first because it deals with a governmental function,
i.e.,
the inspection and safety of boilers. Second, the whole thrust of the case is that procedural requirements are designed to assist, not frustrate, ordinary due process. Unemployment insurance is not governmental; it’s insurance. A private insurance company cannot avoid the ordinary effects of estoppel. There is no good reason why a government-operated insurance program is any different.
There is, of course, a very good reason for the concept of estoppel. It is the law’s method of achieving what economists refer to as efficiency. In a purely efficient world no invalid unemployment claims would be paid, and no valid claims would be unpaid. Economic efficiency is achieved by discouraging inefficient results, and encouraging efficient results. Where the claimant makes a mistake, the sanction is the loss of benefits. When the agency makes a mistake, it does absolutely no good to impose a sanction on the claimant. Equitable estoppel is, thus, only a way of determining whether the mistake was in fact caused by the agency.
One final comment should be made regarding estoppel and governmental conduct. Who is “the government”? In this democracy it is us; it is our government. When the government employs people, we should assume that these government employees will make mistakes. They may, as was done here, give someone the wrong instructions. When this happens, we should recognize that it is only a mistake, that our government will not fall if we move to correct that mistake.
Most government employees try to do a good job, try to assist people in the proceedings in their departments. Citizens realize this and generally rely on what the government people tell them. By not applying promissory estoppel to actions of government employees, we deny the agency a method of controlling and eliminating mistakes in that agency’s procedures. By not applying promissory estoppel to the actions of government employees, we establish as a matter of law that a citizen cannot trust what his government says. Denying benefits to a citizen who is entitled to them is even more detrimental to an agency’s system than to grant benefits to someone who is not entitled to them.
In this case there is no question that Davis continued to file claims, and perhaps even made a pest of herself, and discontinued filing only when told to stop by the bureau employee. This is exactly what occurred in
Ruozzo, supra,
and this is, I believe, why the Supreme Court denied certification in
Ruozzo.
The opinion in
Gaston, supra,
cites and quotes from this court’s opinion in
VanTassel
v.
Steenbergen Turkey Farms, Inc.
(Aug. 14,1981), Lawrence App. No. 1488, unreported, from which I dissented. That case, too, was denied certification by the Supreme Court.
I believe the application of promis
*94
sory estoppel against a government agency in a proper case is more efficient and more just. The
Ruozzo
court holds the same way. The majority here, and the
Gaston
court go the other way. This issue is ready for certification to the Ohio Supreme Court, and we should entertain and grant such a motion.