The opinion
EDMONDS, P. J.,
concurring.
I agree with the majority’s reasoning and conclusions regarding the second and third assignments of error, and I write separately to express my understanding of the gist of petitioner’s first assignment of error and how I would decide it.
In his first assignment of error, petitioner makes the following assertions:
“A. The FDAB [Fair Dismissal Appeals Board] did not determine separately whether district superintendent Corley relied on ‘substantiated’ facts when he recommended [petitioner’s] dismissal * * *.
^ * *
“2. The Fair Dismissal Law requires the FDAB to determine both whether a superintendent’s allegations are true and whether they were substantiated by the evidence considered at the time of the superintendent’s recommendation.
* * * *
“3. The allegations against [petitioner] were not substantiated.”
Later, petitioner explains,
“If FDAB had properly applied this term to the facts that the district relied on when it fired [petitioner], it could have reached just one conclusion: that the facts were ‘unsubstantiated’ within the meaning of ORS 342.905(7). The facts supporting superintendent Corley’s dismissal recommendation did not include ‘competent evidence,’ nor were they ‘adequate to demonstrate or make certain’ the claims against [petitioner].”
*578 Later, petitioner concludes,
“The facts that the district relied upon to dismiss [petitioner] therefore consisted of nothing more than extremely unreliable hearsay evidence. As a legal matter, this type of evidence cannot serve to ‘substantiate’ facts as intended by the legislature under ORS 342.905(6) & (7).”
I agree with the majority that the predicate to petitioner’s first assignment of error is his interpretation of the statutory scheme to require the FDAB to take a snapshot of the evidence before the district and inquire whether that evidence was “true” and “substantiated” at that point in time. The majority answers petitioner’s argument by concluding that the statutory scheme evidences the legislature’s intent that the FDAB consider, in determining whether the allegations are true and substantiated, all of the evidence before it and not just the evidence upon which the district based its decision.
I would, however, answer petitioner’s first assignment by holding that, even if petitioner’s construction of the governing statutory scheme is correct, there was sufficient evidence presented by the superintendent to the school board for the FDAB to find that the superintendent’s allegations were “true and substantiated” at the time of the superintendant’s recommendation. In particular, the superintendant had in his possession a report of a comprehensive investigation by the district’s legal counsel and the benefit of a personal interview conducted by counsel with L. K. As a result of that interview, legal counsel had determined that L. K.’s allegations were credible based on her responses together with the other information in the possession of the superintendant at that time. Petitioner criticizes the district for relying on the report of counsel, characterizing it as “nothing more than extremely unreliable hearsay evidence.” However, in Reguero v. Teacher Standards and Practices, 312 Or 402, 417 , 822 P2d 1171 (1991), the court held that “[hjearsay evidence is as admissible under ORS 183.450(1) as any other evidence as long as it meets the statutory test of reliability.” (Footnote omitted.) The statutory test for reliability in ORS 183.450(1) is whether the evidence is “of a type commonly relied upon by reasonably prudent persons in [the] conduct of *579 their serious affairs.” In my view, that test was satisfied by the manner and the methods of the investigation conducted by legal counsel. Consequently, I concur with the rejection of petitioner’s first assignment of error.