concurring in part; dissenting in part.
I concur fully in the majority’s opinion concerning the adequacy of the agency’s rule (Part II of the opinion) and in its rejection of the residuum rule (Part IV (A) of the opinion). Nonetheless, I dissent from the majority’s disposition of the case, because its opinion analyzes the substan-tiality of the evidence incorrectly. The majority has — contrary to its proper role and its protestations — conducted its own factfinding. A proper evaluation of the agency’s factfinding would lead to an affirmance. I will limit my discussion to three key areas: the role of the burden of proof; the finding that petitioner engaged in an inappropriate sexual contact with Leasa; and the alternative basis for affirmance.
*424THE ROLE OF THE BURDEN OF PROOF
At the beginning of its analysis of the substantiality of the evidence in this case, the majority discusses the burden of proof in the TSPC hearing. 312 Or at 417-18. The point of including that discussion is not entirely clear, but the majority seems to suggest that the location of the burden of proof has some bearing on the outcome. If that is the majority’s meaning, then I disagree.
In this case, TSPC did not base any of its conclusions on one party’s failure to carry an applicable burden of proof. Rather, it made substantive factual findings, which we are to review in the light of the record that was made. The record either does or does not support those findings, no matter where the burden of proof at the hearing may have rested. Indeed, the majority does not fist the location of the burden of proof among the circumstances to be considered in assessing the substantiality of evidence, 312 Or at 418, nor does the commentator on whom the majority principally relies, 3 Davis, Administrative Law Treatise 243-46, § 16-6 (2d ed 1980).
Even if the burden of proof were relevant, the burden in this proceeding was on petitioner to establish his good moral character and fitness to serve as a teacher. See ORS 342.143 (stating qualifications for teaching license). He applied to reinstate his teaching license. And if, as the majority notes, the students were readily available to be called as witnesses, they were as available to petitioner — who was represented by counsel — as to TSPC. Petitioner had the opportunity to subpoena the students but, for whatever reason, elected not to.
FINDING OF SEXUAL CONTACT WITH LEASA
The majority ignores TSPC’s extensive explanation of why — in the light of conflicting evidence — it made the finding that it did, that “an incident occurred * * * in which petitioner engaged in sexual advances and sexual touching” of Leasa, his sixth-grade student. After finding that those who testified were reliable reporters of the statements that had been made to them, TSPC reasoned:
“[TSPC] rejects petitioner’s contention that Leasa made up her claim against petitioner in an effort to help her friend *425Michel[l]e * * * ‘get’ petitioner. In reaching this conclusion, [TSPC] considers the following factors to be significant: (a) Leasa * * * did not come forward on her own with the claim that petitioner had made advances towards her. (b) When Leasa first contacted Principal Miller and asked to be transferred out of petitioner’s class, despite being obviously upset and crying, she did not make any accusations against petitioner, (c) When Officer Costelow and Ms. Min-ette told Leasa* * * they wished to talk to her about a teacher who had a ‘touching problem’, Leasa stated that she did not wish to get [petitioner] in trouble despite the fact that neither Minette nor Costelow had mentioned petitioner’s name, (d) During the course of the investigation, Leasa * * * was reluctant to discuss the incident or to press any allegations against petitioner. Instead she was sympathetic to petitioner and worried about getting petitioner into trouble. (e) When Leasa attempted to withdraw her complaint, she still maintained that the events were true and actually did happen. [TSPC] finds Leasafs] * * * conduct to be more consistent with that of a child who has been the victim of an attempted sexual assault than that of a child who was attempting to fabricate a story in an attempt to discredit her teacher.
“Tanya Melsha testified that she was almost always present in petitioner’s classroom, but the evidence indicates that there were other occasions when Tanya Melsha was absent. [TSPC] finds that there were opportunities for petitioner to have been alone with Leasa * * *.
“[TSPC] is not convinced that all the matters described by Leasa * * * occurred precisely as described by the child. However, the evidence clearly establishes that an incident occurred in which petitioner touched the child in a sexual manner in an attempt to sexually stimulate himself or the child or both.”
Every reason expressed by TSPC is borne out by the record. In assessing whether findings are supported by substantial evidence, our task is not to substitute our judgment for that of the agency, but rather to decide whether the findings are reasonable in the light of countervailing as well as supporting evidence. ORS 183.482(8)(c); Garcia v. Boise Cascade Corp., 309 Or 292, 295, 787 P2d 884 (1990). The majority demonstrates only that a reasonable person could reach a different result than TSPC did. That demonstration *426is beside the point, however, because we are not to review agency findings de novo.
There was both supporting and opposing evidence with respect to whether petitioner engaged in sexual contact with Leasa. In support of TSPC’s finding, a police officer, a deputy district attorney, and a school counselor testified, about Leasa’s statements, and the police report containing her complaint was introduced in evidence. Leasa had reported that petitioner had kept her after school one day in September, locked her in the classroom, touched her “on the breast and in the vaginal area,” and lowered his trousers. Leasa’s statements to the three were similar.
Other supporting evidence included the testimony of another teacher at petitioner’s school that she had seen petitioner coming out of his classroom with a girl after school one day, at about the time of the alleged incident, and that both petitioner and the girl looked very serious. Leasa had gone, upset and crying, to the principal and asked to be transferred out of petitioner’s classroom. She did not, at that time, say why — only that she never wanted to return to petitioner’s classroom again. Petitioner claimed that Leasa had made up a story in order to help Michelle “get” him, but Leasa never came forward on her own with the charge and was always reluctant to speak about it. Leasa was brought into interviews in official settings and responded to questions from potentially intimidating persons in authority, not volunteering the statements in issue. Finally, Leasa never said that the incident did not happen, even when she tried to withdraw her complaint after talking to petitioner.
Opposing evidence included testimony from other teachers that the classroom doors could not be locked from the inside. An aide testified that she usually remained in petitioner’s classroom after school and that she had never seen Leasa remain after school alone with petitioner. Another teacher testified that he usually met with petitioner after school and had never seen him alone with Leasa. Petitioner testified and denied that the incident had occurred.
Petitioner’s opposing evidence raised questions about the credibility of Leasa’s statements. For instance, according to one witness, Leasa said that petitioner had *427locked the door to the classroom,1 whereas other witnesses testified that the door could not be locked from the inside. TSPC was entitled to find, however, that the inconsistencies did not rob Leasa’s statements of all credibility.2 On this record, TSPC’s findings about sexual contact with Leasa are reasonable in the light of countervailing as well as supporting evidence.
ALTERNATIVE BASIS FOR AFFIRMANCE
The majority notes, correctly, that TSPC concluded that any of three grounds, standing alone, independently provided a basis for the decision to deny reinstatement of petitioner’s teaching license. TSPC drew these conclusions of law:
“3. Petitioner’s repeated acts of inappropriate contact with female students, his discussion of inappropriate sexual topics, and his employment of sexually suggestive words, gestures, and expressions constitute gross neglect of duty and a serious and material breach of professional responsibilities. Petitioner’s actions demonstrate a serious failure to employ professional judgment in violation of OAR 584-20-010(5). This conduct also constitutes gross unfitness.
“4. Petitioner’s sexual contact with Leasa * * * constitutes gross neglect of duty and gross unfitness.
“5. Petitioner is guilty of gross neglect of duty and gross unfitness based on his efforts to persuade female students from his class, including Leasa * * *, to withdraw the allegations against him. This conduct also violates OAR 584-20-035(l)(b)[,] which requires an educator to refrain from exploiting professional relationships with any student for personal gain, or in support of persons or issues.
*428“6. Any of these specifications in paragraphs 3,4, and 5 above, are sufficient alone to support the conclusion that Petitioner is guilty of gross neglect of duty and gross unfitness.”
The majority errs, however, in making the unwarranted assumption that the “repeated acts of inappropriate contact with female students” listed as one of several items in Conclusion No. 3 relied on or encompassed Conclusion No. 4, concerning “sexual contact with Leasa.” 312 Or at 421. A fair reading of the order as a whole demonstrates that Conclusion No. 3 and Conclusion No. 4 relate to different events, not the same events.
By its unduly restrictive interpretation of TSPC’s order, the majority is able to bypass what otherwise would be an insurmountable barrier to its result: the findings that underlie Conclusion No. 3 are not “based entirely on hearsay.” 312 Or at 419 (emphasis in majority). Many of the pertinent findings are supported by nonhearsay evidence, such as petitioner’s own testimony.
(1) In Finding No. 7, TSPC found that petitioner had put his arm around female students. Petitioner admitted hugging students, male and female. He also admitted that a prior principal had admonished him for hugging a female student.
(2) In Finding No. 8, TSPC found that petitioner stood close to female students in his classroom and hovered over the backs of his students, with his hands on their desks, in a way that made them uncomfortable. Petitioner admitted standing behind a female student, leaning over and placing his hands on her desk. He also acknowledged that he had been admonished by his most recent principal for that type of act; the written warning to him was introduced as an exhibit.
(3) In Finding No. 9, TSPC found that petitioner used sexual words, gestures, and winks toward his students. He admitted winking at students and standing so close to other people that they sometimes took a step back. He admitted telling the investigating officer that “these girls all seem to be, you know, they are very interested in sex and in heat half of the time.”
*429(4) In Finding No. 10, TSPC found that petitioner discussed “french kissing” with his students and asked whether they had “sucked face.” Petitioner testified that he had discussed the topic of “french kissing” twice with his students. He testified that he did not initiate the first such conversation but that he could not remember whether he initiated the second one. He testified that “[t]he entire classroom was there. * * * We talked about it in the classroom[,] about ‘trading spit’ — we talked about it in the classroom — it came out again, you know, about ‘sucking face’ and I don’t remember if I did it or, I mean if I brought on the conversation or somebody else brought on the conversation as to say that so-and-so was sucking face somewheres [sic].”
(5) In Finding No. 11, TSPC found that petitioner tapped a student on the buttocks with a yardstick, commenting that she was looking nice. Petitioner admitted slapping a female student on the buttocks with a yardstick during show- and-tell one Monday morning.
(6) In Finding No. 15, TSPC found that petitioner touched Michelle, his sixth-grade student, on the breast and that the act was intentional. Petitioner admitted that he touched Michelle’s breast. The only dispute was whether he did so intentionally.
Petitioner had various explanations for each of those events and various arguments about why none of them constituted a failure to employ professional judgment or an instance of gross unfitness. The crucial point, however, is that the findings concerning those events , are based in part on admissions, as well as on hearsay. The majority’s sweeping dismissal of all of TSPC’s findings as grounded on hearsay is a distortion of the record.
Because TSPC denied relicensing on three independent grounds, we should affirm its order if any of the three was proper. As demonstrated above, even if nonhearsay evidence is required to support the findings in this case, the findings that relate to TSPC’s Conclusion No. 3 are supported by substantial evidence. TSPC explained the connection between the findings and the conclusion. Conclusion No. 3 is a permissible conclusion of law based on the pertinent findings and the applicable statutes and rules. Accordingly, any *430error in the findings concerning Leasa, affecting Conclusion No. 4, is harmless.
In summary, the majority pays lip service to the right legal principles but applies them wrongly in this case. For that reason, I dissent except as stated in the opening paragraph of this opinion.
Other witnesses reported only that Leasa said that she could not get the door to open.
TSPC’s modified order stated that the agency was “not convinced that all the matters described by Leasa * * * occurred precisely as described by the child. However, the evidence clearly establishes that an incident occurred in which petitioner touched the child in a sexual manner * * If that passage was intended to respond to the conflicting testimony about whether petitioner locked the classroom door, it did so sufficiently. TSPC was not required expressly to resolve the conflict, because it was entitled to decide that a resolution of it was not dispositive. TSPC could have believed, for example, that the door was stuck or that Leasa had been mistaken or panicked.