The opinion
EDMONDS, J.,
dissenting.
The issue raised by the first assignment of error is whether there is substantial evidence to support the Board’s finding that the parties stipulated that the proposed boundary change had no effect on the Canby school districts. 1 The majority holds that the exchange between the hearings officer and petitioners’ attorney is such substantial evidence. However, in response to the hearings officer’s inquiry, petitioners’ attorney only said, “Yes, we are not contesting that there is an adverse impact in [sic] Molalla Union High. That district is on record as opposing the change because of the impact on the elementary district.”
In Johnson v. Northwest Acceptance, 259 Or 1, 7 , 485 *39 P2d 12 (1971), the court pronounced the following rule of construction concerning the scope of a stipulation:
“It is well recognized that the language of a stipulation, whether it be an agreed statement of facts or related to other matters, will not be so construed as to give it the effect of a waiver of a right not plainly intended to be relinquished.”
In this case, the Aamodts petitioned to transfer their property from the Rural Dell School District and Molalla Union High School District to the Canby districts. The petition was opposed in writing by Canby School District 86. The Canby Union High School District recommended the change only “if all criteria is [sic] met.” After the local boundary board found against the Aamodts, they appealed to the State Board of Education. Petitioners’ attorney did not represent the Canby districts. At the beginning of the hearing before the Board’s hearing officer, the exchange between the hearing officer and petitioners’ attorney occurred which the majority holds is sufficient to support the Board’s finding that the parties stipulated as to the non-opposition of the Canby districts. Later in the hearing, petitioners’ attorney suggested that all four districts’ written responses to the local boundary board be made part of the record “noting the objections of Canby [School District 86], Molalla Union High and Rural Dell.”
During oral argument to the Board itself, petitioners’ attorney argued that District 86 was on record as opposing the boundary change. Later, one of the Board members inquired as to whether the Board had “heard from the Canby contingency [sic].” Again, petitioners’ attorney reiterated that District 86 was on record as being opposed to the change of boundary. In subsequent appearances before the Board, petitioners’ attorney continued to assert that her clients had never stipulated that there was not an adverse impact on the other districts.
It is unlikely that petitioners’ attorney intended to enter into a stipulation inconsistent with her clients’ position when the letter from District 86 was favorable to her clients’ position and when she offered it as evidence of District 86’s objection subsequent to her exchange with the hearing officer. I would hold that the stipulation did not include District 86 because petitioners did not “plainly intend to relinquish” *40 what would have been favorable evidence. Because the stipulation did not include District 86, there is not substantial evidence to support the Board’s ultimate finding that criterion (a) was satisfied. I dissent.
In Armstrong v. Asten-Hill Co., 90 Or App 200 , 752 P2d 312 (1988), we said:
“[The substantial evidence] test * * * requires us to look at the whole record with respect to the issue being decided, rather than at one piece of evidence in isolation. If an agency’s finding is reasonable, keeping in mind the evidence against the finding as well as the evidence supporting it, there is substantial evidence. That is not what has been referred to as the ‘any evidence’ rule * * 90 Or App at 206 .
See also 1000 Friends of Oregon v. LCDC (Lane Co.), 305 Or 384, 402-07 , 752 P2d 271 (1988); Younger v. City of Portland, 305 Or 346, 350-57 , 752 P2d 262 (1988).