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Chapter I - Subchapter D

§ 1-46 Evidence at the Hearing.

Rules of Evidence

ALJ's Discretion to Limit Evidence

ALJ excluded evidence offered by petitioner to show other employees accepted penalties in satisfaction of charges arising from same incident. Such evidence would lead to protracted mini-trials where the parties would explore other officers’ reasons for accepting penalties. Subsection (b) of this section authorizes limits on testimonial or documentary evidence. Dep’t of Correction v. Jackson, OATH Index Nos. 2927/10, 2929/10, 2930/10 & 2931/10 (Apr. 7, 2011), rejected on other grounds, Comm’r Dec. (Nov. 22, 2011).


Hearsay is admissible in administrative proceedings and may form the sole basis for a finding of fact. The hearsay must be sufficiently probative of a material fact and must have some objective indicia of reliability. Contemporaneous statements evince reliability. E-mail from co-worker to trial witness that she had just seen respondent yelling at her supervisor was found to be reliable hearsay that supported witness’ testimony. Transit Auth. v. Victor, OATH Index No. 799/11 (Mar. 3, 2011), adopted, Authority Determination (Mar. 24, 2011), aff’d, NYC Civ. Serv. Comm’n Item No. CD-11-52-A (Aug. 9, 2011).

Notation on file folder, in the absence of an affidavit from the administrative aide who mailed the notice, was found to be insufficient to prove the Police Department mailed respondent the notice within five business days after it seized the vehicle. Police Dep’t v. Martinez, OATH Index No. 2118/11, mem. dec. (May 3, 2011).

Computerized records in petitioner’s Business Information Systems (BIS) admitted into evidence over respondent’s objection where petitioner’s witness explained how petitioner migrated to a virtually paperless system by scanning the original documents into BIS and storing them offsite, as part of its current business practice. Dep’t of Buildings v. Ward, OATH Index No. 1746/11 (Sept. 1, 2011), adopted, Comm’r Dec. (Sept. 13, 2011).

Taxicab Technology System (“TTS”) data obtained by Taxi and Limousine Commission designated vendors and the reports created therefrom are admissible as business records in license revocation proceeding. Taxi & Limousine Comm’n v. Azim, OATH Index No. 1818/11 (June 30, 2011), adopted, Comm’r Dec. (Aug. 15, 2011).

Computer printout of 90 occasions where taxi driver allegedly activated out-of-town rate (“Rate 4”) for rides wholly within the City is admissible as a business record, even if the printout was prepared for trial, as long as the underlying data was compiled in the ordinary course of business and entered at or near the time of the transaction. Taxi & Limousine Comm’n v. Carniol, OATH Index No. 1736/11 (June 24, 2011), adopted, Comm’r Dec. (Aug. 15, 2011).

E-mail from 311 call center summarizing complaint from named individual was admissible in civil servant’s disciplinary hearing.  Petitioner was not required to produce declarant as a witness or audio recording of the 311 call, where witness was not within petitioner’s control and recording was routinely erased before the matter was referred to petitioner for discipline.  The e-mail, although hearsay, was sufficiently detailed and reliable to be considered.  An investigator spoke to the declarant and confirmed the substance of the complaint.  Petitioner was able to verify facts which corroborated details contained in the complaint.  Dep’t of Environmental Protection v. Johnson, OATH Index No. 1330/10 (May 13, 2010), penalty rescinded by stipulation, NYC Civ. Serv. Comm’n Item No. CD 11-14-O (Apr. 19, 2011).

A DMV abstract of respondent’s driving record was admitted as a business record over respondent’s objections, the ALJ finding that it was a certified copy of an electronic business record admissible under CPLR 4518(a), and that, even if it were not, strict compliance with the rules of evidence with regard to hearsay was not required by the tribunal.  Dep’t of Sanitation v. Torrence, OATH Index No. 2515/10 (July 22, 2010).

Rules against hearsay and the Dead Man's Statute do not preclude witness testimony of statements by a deceased declarant under subsection (a) of this section. In administrative proceedings, hearsay is admissible if it is considered probative at the discretion of the administrative law judge. Matter of Kushner, OATH Index Nos. 2736/09 & 2737/09, mem. dec. (June 11, 2009).

Dead man's statute did not preclude receipt in evidence of interview statements made by witness, now deceased, to investigators at the NYC Department of Investigation. Hearsay is admissible in administrative hearings conducted at OATH; further, the Dead Man's statute only precludes testimony of a conversation between an interested witness and the deceased, not between the deceased and the defendant. Dep't of Buildings v. Stallone Testing Laboratories, Inc., OATH Index No. 362/10 (Aug. 26, 2009).

Dead Man's statute will not be applied reflexively in administrative hearing. Dep't of Housing Preservation & Development v. 331 West 22nd Street LLC, OATH Index No. 912/06, mem. dec. (Dec. 29, 2006).

In a default proceeding, one-page conclusory memos from a supervisor were found to be unreliable and insufficient to sustain charges of insubordination and neglect of duty. Other hearsay  was found to have established unauthorized absence and excessive lateness charges. Dep't of Homeless Services v. Ighodaro, OATH Index No. 1594/99 (June 14, 1999).

Hearsay account of threatening phone call was found insufficient to prove conduct absent testimony of victim, since her credibility was placed in question, having been the former paramour of respondent's husband. Dep't of Correction v. Aiken, OATH Index No. 1750/99 (Aug. 4, 1999), aff'd, NYC Civ. Serv. Comm'n Item No. CD 01-25-SA (Apr. 12, 2001).

Hearsay  was found insufficient to meet petitioner's burden of proof that respondent used excessive force against a civilian, where it was central to the outcome of the case, complainant had arguable bias, complainant failed to make a complaint or appear at the hearing but instead had fled criminal court jurisdiction and made prior inconsistent statements. Police Dep't v. Nieves, OATH Index No. 1888/99 (Oct. 4, 1999).

Hearsay, consisting of affidavit from out-of-state passenger, was insufficient to meet petitioner's burden of proof where credibility questions concerning the complainant's version, motive and honesty required that the right to cross-examination not be dispensed with. Taxi and Limousine Comm'n v. Gamliel, OATH Index No. 996/98 (July 24, 1998).

Administrative law judge issued preliminary ruling from the bench that the Dead Man's Statute, CPLR section 4519, is inapplicable in a Loft Board hearing. Party's objection to receipt of testimony on that basis was deemed waived where party did not avail himself of the opportunity to submit authority to the contrary. Matter of Sultan, OATH Index Nos. 1314-15/98, at 14, n. 1 (Aug. 18, 1998), adopted, Loft Bd. Order No. 2323 (Oct. 27, 1998).

Where the petitioner offered hearsay and double hearsay statements that were contemporaneously made, at a time when the subject matter of the statements was not known to be an issue, and where the respondent's trial testimony contrary to those statements was not credible, the hearsay statements were credited. Bd. of Education v. Roman, OATH Index No. 1555/97 (Sept. 30, 1997).

Prior sworn testimony - in this case, the testimony of a witness at two criminal trials - is among the most reliable forms of hearsay. Transit Auth. v. Tarquini, OATH Index Nos. 1585-87/96 (Aug. 1, 1997).

Although hearsay is often less reliable than testimony given subject to cross-examination, hearsay was credited over contrary testimony where the hearsay was given contemporaneously and was found to be reliable. Dep't of Correction v. Boyce, OATH Index No. 789/97 (July 9, 1997), aff'd, NYC Civ. Serv. Comm'n Item No. CD 99-75-SA (July 19, 1999).

A hearsay declarant does not present herself to the trier of fact for assessment of her demeanor and credibility; does not submit to cross-examination in which the certainty of her perceptions, her motivations and biases, the reliability of her memory, and her character may be tested by one with a motive to test them vigorously. Therefore, the fact that hearsay is admissible in administrative proceedings does not mean that hearsay is not skeptically received. Triborough Bridge and Tunnel Auth. v. Simms, OATH Index No. 1303/97 (May 30, 1997), aff'd, NYC Civ. Serv. Comm'n Item No. CD 98-123-SA (Dec. 30, 1998).

In general, hearsay evidence is admissible in administrative trials. Transit Auth. v. Castro, OATH Index No. 748/95 (Mar. 7, 1995); see also Davidson v. Dep't of Correction, OATH Index No. 545/95 (Feb. 7, 1995).


Although hearsay is permissible under the relaxed standards of evidence applicable to administrative proceedings, competence rules remain applicable, and a fact can only be alleged by a person who is, and who shows that she is, in a position to know that fact. An allegation related as hearsay must include an indication of the source of the allegation and the competence of that source to know the thing alleged. Penn-Troy Machine Company, Inc. v. Dep't of General Services, OATH Index No. 478/93, mem. dec. (Mar. 2, 1993).


No adverse inference was drawn from petitioner's unintentional loss of tape recordings of witness interviews, because respondent had summaries of the witnesses' statements and was able to cross-examine the witnesses effectively. Dep't of Correction v. Whitehead, OATH Index No. 1552/97 (Oct. 10, 1997).

Where the refusal of a witness to appear and testify against the respondent was not shown to be based on a desire to avoid testifying falsely against the respondent, no adverse inference was drawn against the petitioner. Transit Auth. v. Tarquini, OATH Index Nos. 1585-87/96 (Aug. 1, 1997).

Where the respondent declined to testify and give explanations for the evidence against him, the administrative law judge was permitted to draw the strongest inference against the respondent that the evidence permitted. Dep't of Correction v. Sorisio, OATH Index No. 2110/96 (Apr. 30, 1997); see Dep't of Correction v. Brookins, OATH Index No. 193/97 (Apr. 21, 1997).


A federal court conviction, based on the respondent's guilty plea, was binding on the respondent here, and he was not free to contest the facts established by his conviction. Dep't of Buildings v. Gelb, OATH Index No. 2155/96 (Mar. 3, 1997), aff'd, Sup. Ct. N.Y. Co. Index No. 107934/97, Decision and Order (Dec. 11, 1998) (Daniels, J.).


As a general rule, petitioner may not use a prior disciplinary disposition that was adverse to the respondent to prove that respondent is guilty of the instant disciplinary charges. Dep't of Correction v. Whitehead, OATH Index No. 1552/97 (Oct. 10, 1997).

As a general rule, it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion. Therefore, evidence of prior, similar but unrelated acts by the respondents was properly excluded. Dep't of Housing Preservation and Development v. Isidro, OATH Index No. 777/96 (Mar. 27, 1996), aff'd, NYC Civ. Serv. Comm'n Item No. CD 97-39-SA (June 13, 1997).

Admissibility of Particular Evidence


In the exercise of discretion, ALJ admitted polygraph test results in a disciplinary hearing at the accused worker's request, where the worker presented sufficient evidence that a recognized expert performed the test on a properly functioning machine. Dep't of Sanitation v. Bacigalupo, OATH Index No. 2091/07 (Jan. 25, 2008).


ALJ rejected photograph offered by counsel for building owners and occupant to prove that a sign had been removed, where counsel did not present a witness who could testify that the photograph was an accurate depiction of the premises as of the date of trial. Since the photograph was not authenticated it was not admitted into evidence. Dep't of Buildings v. 395 Second Avenue, New York Co., OATH Index No. 1997/09 (Apr. 2, 2009).


Videotape which depicted respondent as a defendant on “The People’s Court” excluded from evidence for lack of foundation where offering party did not obtain the video from its creator, and no one from complainant-organization appeared to testify as to how it came into possession of the video, whether its contents were authentic and whether it was in its original form. Dep’t of Buildings v. Ward, OATH Index No. 1746/11 (Sept. 1, 2011), adopted, Comm’r Dec. (Sept. 13, 2011).

If a break in the chain of custody of an audio tape recording was established or the tape had been tampered with, this would affect the weight of the evidence, not its admissibility.  Tape recording of conversations of complainant, tenant, and respondent, landlord, admitted into evidence.  Comm’n on Human Rights ex rel. Lukasiewicz v. Cutri, OATH Index No. 2131/10 (Dec. 8, 2010), modified on other grounds, Comm’n Dec. & Order (Feb. 17, 2011).

Video recordings, taken together with testimony of person who made the recordings, found to be sufficiently reliable to admit as evidence in administrative hearing. Comm'n on Human Rights ex rel. Okoumou v. County Recovery Corp., OATH Index No. 445/09 (Feb. 6, 2009), modified on penalty, Comm'n Dec. & Order (July 7, 2009).

A segment of videotape was admitted into evidence based on the testimony of one of the participants in the incident shown on the videotape, that the tape fairly depicted what had occurred, and based on the testimony of the person who copied the videotape from the original, that the tape segment was unedited and continuous. A second segment of videotape, compiled by editing videotape from three cameras at three different angles, was admitted into evidence based on the testimony from the person who compiled the videotape from the originals, that he had copied all portions of the three different original videotapes that showed any portion of the incident in question, and had compiled them into a single tape to show one continuous sequence of events. Triborough Bridge and Tunnel Auth. v. Simmons, OATH Index No. 1166/96 (May 1, 1997).


GPS evidence admitted in license revocation proceeding brought against taxi driver charged with overcharging passenger on multiple occasions. Taxi & Limousine Comm’n v. Azim, OATH Index No. 1818/11 (June 30, 2011), adopted, Comm’r Dec. (Aug. 15, 2011).


Documents obtained by the petitioner before the conclusion of a criminal case that was disposed of favorably to the respondent, and before those documents were sealed by court order, could not be introduced into evidence at a subsequent employee disciplinary proceeding against the respondent unless the petitioner obtained an unsealing order from the court that had sealed the records. However, a witness was permitted to testify to the events at issue based on recollection independent of the sealed records, and the petitioner was permitted to introduce into evidence reports of the petitioner's investigators which contained information taken from the criminal case records before those records were sealed. Dep't of Correction v. Toby C., OATH Index No. 1692/96 (Sept. 19, 1997).

In a vehicle retention hearing, car owner’s request to exclude from evidence the record of a settlement of a prior vehicle retention proceeding was denied as the settlement is a record of a civil case, not a criminal matter terminated in favor of the accused under the sealing provision in the criminal procedure law.  Police Dep’t v. Espinal, OATH Index No. 1383/11, mem. dec. (Dec. 23, 2010).


A transcript of the respondent's investigatory interview was admitted into evidence at trial, despite the fact that the transcript was not notarized, because the transcript certification included the stenographer's statement that the transcript was a true and accurate record of the proceeding held in her presence. Dep't of Buildings v. Mogg, OATH Index No. 1757/96 (May 31, 1996), modified as to penalty, Comm'r Dec. (June 24, 1996); Dep't of Buildings v. Purrier, OATH Index No. 1744/96 (May 29, 1996), modified as to penalty, Comm'r Dec. (June 24, 1996).

Administrative law judge admitted into evidence the transcript of respondent's investigatory interview over respondent's objection that he was never offered an opportunity to correct any errors in the transcription of his statements. While CPLR section 3116(a) requires that a deposed person be given his deposition for changes and signing (see also CPLR section 5525(c)), no departmental rule or regulation requires a similar procedure be followed for a recorded investigatory interview. The collective bargaining agreement provided that a record of the interview be made available to a member who is brought up on charges based on answers to the questions; here there was no indication respondent requested a copy of the transcript, nor has he asserted that it contained any errors or omissions. Fire Dep't v. Durkin, OATH Index No. 309/90, mem. dec. (Jan. 4, 1991).


Although the prior disciplinary history of a respondent in an employee disciplinary case is not admissible to show that the respondent had a propensity to commit the charged misconduct, it may be admissible for other purposes. Here, the prior disciplinary history was admissible to rebut the respondent's contention that the complainant against him overreacted to the encounter with the respondent that was the subject of the instant charges. Dep't of Correction v. West, OATH Index No. 1498/96 (July 1, 1996), aff'd, NYC Civ. Serv. Comm'n Item No. CD 97-65-SA (Sept. 11, 1997).


In a taxi license revocation hearing, documentary evidence was found sufficiently reliable, by itself without witness testimony, to establish prima facie case that licensee's urine tested positive for marijuana, which licensee failed to rebut. Documents included an affidavit from a toxicologist, with accompanying chain of custody form, toxicology reports and a confirmation from a medical review officer. Taxi & Limousine Comm'n v. Shakoor, OATH Index No. 860/08 (Nov. 30, 2007).

Administrative law judge ruled that petitioner laid proper foundation for drug test results to be admitted as a business record. Dep't of Parks and Recreation v. Nappa, OATH Index No. 306/00 (Jan. 25, 2000), modified on findings, aff'd on penalty, Comm'r Dec. (Feb. 9, 2000).


ALJ denied petitioner's application to exclude from evidence a tape recording of petitioner's conversations with security guard, where the tape was made by the security guard without petitioner's knowledge. ALJ held that OATH lacks jurisdiction to exclude the tape pursuant to CPLR section 4506(1), which provides that the motion to suppress be made before a justice of the Supreme Court in the district where the proceeding is pending. Further, since the security guard was a party to the conversation and consented to the taping, the taping was not illegal within the meaning of state law (Penal Law §§ 250.00(2), 250.05). Matter of Kasher v. BLF Realty Holding Corp., OATH Index No. 262/99 (Oct. 26, 2001), adopted in part, rejected in part, Loft Bd. Order No. 2704 ( Feb. 7, 2002).

A detective taped a conversation that she had with respondent civil servant without respondent's knowledge. Ethical opinions have generally condemned secret taping by lawyers as unethical, but have recognized an exception for such taping by law enforcement personnel and prosecutors, where one party to the conversation consents to the recording. Respondent's motion to suppress the secretly taped conversation denied. Dep't of Finance v. Diaz, OATH Index No. 611/98 (Dec. 11, 1997).


WWW.Mapquestcom adequately provides one measure of driving distances, reliable enough for administrative proceedings, to show at least in terms of gross estimates, that City employee was not using City van exclusively for City business. Human Resources Admin. v. Allen, OATH Index No. 212/06 (June 28, 2006).

Impeachment of Witnesses


The scope of permissible cross-examination for purposes of impeachment of a trial witness is a matter that is relegated to the discretion of the administrative law judge. Police Dep't v. Zisel, OATH Index No. 389/97 (Mar. 7, 1997), modified as to penalty, Comm'r Dec. (Sept. 23, 1997).


A witness's conviction for armed robbery, and the underlying nature of the act that led to that conviction, were permissible subjects of cross-examination for purposes of impeachment of the witness. Police Dep't v. Zisel, OATH Index No. 389/97 (Mar. 7, 1997), modified as to penalty, Comm'r Dec. (Sept. 23, 1997).


Evidence of prior formal discipline may be used for impeachment at trial when an employee falsely denies she has previously committed similar misconduct. Human Resources Admin. v. Green, OATH Index No. 3347/09 (Nov. 18, 2009).

Imposition of a prior fine on respondent was admissible to rebut respondent's claim that he lacked notice of a rule prohibiting his use of a City car for anything other than official business. Dep't of Housing Preservation and Development v. Thomas, OATH Index No. 1175/99 (June 10, 1999).

As a general rule, petitioner may not use a prior disciplinary disposition that was adverse to respondent to prove respondent guilty of the instant disciplinary charges. Dep't of Correction v. Whitehead, OATH Index No. 1552/97 (Oct. 10, 1997).

Cross-examination of a witness about prior bad acts, for purposes of impeachment of the witness, must be founded upon matters about which cross-examining counsel had a good faith basis to inquire. Police Dep't v. Zisel, OATH Index No. 389/97 (Mar. 7, 1997), modified as to penalty, Comm'r Dec. (Sept. 23, 1997).

Where cross-examination of a witness about an alleged prior bad act by the witness was based upon information improperly obtained by cross-examining counsel from sealed records of an arrest that had not led to a conviction, the cross-examination lacked good faith basis and was not permitted. Police Dep't v. Zisel, OATH Index No. 389/97 (Mar. 7, 1997), modified as to penalty, Comm'r Dec. (Sept. 23, 1997).

The respondents' post-trial submission of a statement that the complaining witness against the respondents had been arrested after trial was improper, because an arrest by itself did not constitute proof of wrongdoing, but further hearings were unnecessary because the law presumes that a judge, unlike a jury, is able to ignore improper evidence. Police Dep't v. Kushner, OATH Index Nos. 447-48/97 (May 1, 1997).

Trial Procedure


The attorney-client privilege may be asserted by the client or the attorney or someone who stands in their interest. A litigant may not preclude the admission of evidence by claiming it violates his adversary's privilege. Building owner could not assert attorney-client privilege on behalf of deceased tenant. Dep't of Housing Preservation & Development v. 331 West 22nd Street LLC, OATH Index No. 912/06, mem. dec. (Dec. 29, 2006).


Where the petitioner bears the burden of proof by a preponderance of the evidence, as in an employee disciplinary case, and disposition of the case turns on the resolution of factual disputes between the petitioner and the respondent, the petitioner must prove that its account of events was more probable than the respondent's. If the weight of the evidence is with the respondent or if the evidence is equally balanced, the petitioner's case must fail. Dep't of Correction v. Toby C., OATH Index No. 1692/96 (Sept. 19, 1997).


The petitioners' request to call the respondent's trial counsel as a witness was denied because, although counsel unquestionably had knowledge of facts relevant to the petition, other witnesses were available to the petitioners whose knowledge was equal to counsel's, if not superior, and because grant of the request would have raised difficult questions concerning not only the disqualification of the respondent's trial counsel but also the disqualification of his entire firm. Matter of Seyfried, OATH Index No. 127/97 (Jan. 3, 1997), rev'd in part and remanded on other grounds, Loft Bd. Order No. 2083 (Mar. 20, 1997).


A pre-trial application to present testimony via speaker telephone was denied where basis of application was uncertainty of whether and when a witness might be called to testify and where documents would be exhibited to the witness. Under this section, applications to present testimony by alternative means are within the discretion of the Administrative Law Judge. Matter of Pelli, OATH Index Nos. 1195-96/01, mem. dec. (Jan. 11, 2001).

Petitioner's application to call a rebuttal witness was denied at the conclusion of a case. A party may not offer rebuttal evidence except to counter new facts affirmatively asserted by its adversary. Pursuant to this rule, the use of rebuttal witnesses is within the discretion of the ALJ. Dep't of Sanitation v. Ambrosino, OATH Index No. 208/01 (May 30, 2001).

It is within the administrative law judge's discretion to permit rebuttal testimony by a witness not called on either petitioner's or respondent's direct case, where respondent's attorney did not object and the testimony did not unduly protract the proceeding. Police Dep't v. Guarino, OATH Index No. 1696/98 (Dec. 17, 1998).

Although the rules of this subchapter do not expressly state that a trial must be conducted in the form of a traditional adversarial evidentiary hearing, that procedure is implicit throughout the rules. Matter of Chin, OATH Index No. 1142/97 (Apr. 18, 1997), adopted, Loft Bd. Order No. 2154 (Oct. 10, 1997).

Where the material facts were undisputed and disposition of the case turned entirely on the application of the law to those undisputed facts, the petitioner's request, consented to by the respondents, to conduct the trial by written submissions was granted. Matter of Chin, OATH Index No. 1142/97 (Apr. 18, 1997), adopted, Loft Bd. Order No. 2154 (Oct. 10, 1997).


Administrative law judge granted respondent's motion to dismiss without prejudice where petitioner refused to obey administrative law judge's direction to proceed with other witnesses when its main witness was unavailable to testify. Dep't of Environmental Protection v. Elliott, OATH Index No. 1647/03, mem. dec. (Feb. 17, 2004).


Where the respondent spoke with a pronounced accent and could not be understood, and refused to testify through an interpreter, the respondent was permitted to testify, by consent of both sides, by means of written answers to written questions from counsel. Admin. for Children's Services v. Lin, OATH Index No. 1665/97 (Dec. 15, 1997), aff'd, NYC Civ. Serv. Comm'n Item No. CD 00-51-SA (Apr. 10, 2000).


Application to call rebuttal witness made during closing argument denied where there was no undue surprise. Health & Hospital Corp. (Segundo Ruiz Belvis Diagnostic and Treatment Center) v. Pena, OATH Index No. 1961/04 (Oct. 14, 2004).

Administrative law judge denied petitioner's application for a continuance to call a rebuttal witness who was an obvious participant in the events in question. Dep't of Sanitation v. Edgar, OATH Index No. 2228/01 (Dec. 3, 2001).

In Loft Board proceeding, denying owner's request to call rebuttal witness was within administrative law judge's discretion where it was made on the last scheduled hearing day, four months after the testimony began, and where the witness was not newly discovered and the owner could have called the witness during his direct case. Matter of DeLong, OATH Index Nos. 266 & 518/99 (Oct. 4, 1999), adopted and remanded, Loft Bd. Order No. 2457 (Dec. 13, 1999), application for reconsideration denied, Loft Bd. Order No. 2500 (Mar. 30, 2000).