CARTER, C.J.
In these consolidated cases, Clara Harrell and Brenda Prater were permanent-status civil service employees of the Louisiana Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, at the Pinecrest Supports and Services Center (hereinafter referred to as "Pinecrest"). Ms. Harrell and Ms. Prater appeal an adverse ruling by the State Civil Service Commission (the Commission) upholding their termination by the appointing authority from their previous state employment as Residential Services Specialists at Pinecrest. After a thorough review of the record and the applicable law and jurisprudence, we affirm the Commission's decision, finding Ms. Harrell's and Ms. Prater's terminations were based on legal cause and commensurate with the infractions.
Prior to their terminations, Clara Harrell and Brenda Prater were both serving in supervisory positions with permanent civil service status, having been employed as Residential Services Specialists (RSS-6 and RSS-5, respectively) on Home 315 at Pinecrest. Pinecrest is a state institution for the care of persons with serious mental and physical disabilities, and Home 315 is an assisted living facility for special needs residents at Pinecrest, many of whom are nonverbal.
Ms. Harrell and Ms. Prater each denied all of the charges against them and each requested an appeal of their dismissals to the Commission, alleging that their terminations were in retaliation for their having filed a grievance in June 2008.
Ms. Harrell and Ms. Prater assert that the Commission, through its referee, erred when the referee: (1) rejected their appeal since the evidence did not support the conclusion; (2) admitted hearsay statements of former employees; (3) rejected un-rebutted evidence of Ms. Harrell's polygraph
In civil service disciplinary cases, decisions of the Commission and its referees are subject to the same standard of review as a decision of a district court. Lasserre v. Louisiana Public Service Com'n, 04-0615 (La.App. 1 Cir. 4/8/05), 903 So.2d 474, 477. Factual findings of the Commission referee are subject to the clearly wrong or manifest error standard of review. Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641, 647. It is the province of the Commission referee to determine the weight to be given to evidence in an administrative hearing. Evans v. DeRidder Mun. Fire, 01-2466 (La.4/3/02), 815 So.2d 61, 69, cert. denied, 537 U.S. 1108, 123 S.Ct. 884, 154 L.Ed.2d 779 (2003). As to the determination of whether the disciplinary action is based on legal cause and commensurate with the offense, the Commission's decision should not be modified unless it is arbitrary, capricious, or characterized by abuse of discretion. Lasserre, 903 So.2d at 477. An administrative agency's determination is "capricious" when it has no substantial evidence to support it; it is "arbitrary" when the evidence has been disregarded or not given the proper weight. Marsellus v. Dept. of Public Safety and Corrections, 04-0860 (La.App. 1 Cir. 9/23/05), 923 So.2d 656, 661.
A classified employee with permanent status may not be subjected to disciplinary action except for cause expressed in writing. LSA-Const. art. 10, § 8(A). Cause sufficient for the imposition of discipline means conduct that impairs the efficiency of the public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged. Wopara v. State Employees' Group Benefits Program, 02-2641 (La. App. 1 Cir. 7/2/03), 859 So.2d 67, 69. The appointing authority (Pinecrest in this case) must prove by a preponderance of the evidence that the employee's conduct did, in fact, impair the efficient and orderly operation of the public service. Id. A preponderance of the evidence means evidence which is of greater weight than that which is offered in opposition. Proof is sufficient to constitute a preponderance when, taken as a whole, it shows the fact of causation sought to be proved as more probable than not. Brown v. Dept. of Health & Hospitals Eastern Louisiana Mental Health System, 04-2348 (La.App. 1 Cir. 11/4/05), 917 So.2d 522, 527, writ denied, 06-0178 (La.4/24/06), 926 So.2d 545.
Pinecrest imposed the sanction of termination based upon the written charge that Ms. Harrell and Ms. Prater had physically, emotionally, and psychologically abused Pinecrest residents. Ms. Harrell and Ms. Prater deny they were abusive and argue that Pinecrest failed to prove by a preponderance of the evidence that they were abusive to Pinecrest residents. Ms. Harrell and Ms. Prater also maintain that their dismissal was due to retaliation because they had filed a grievance against Pinecrest administration. However, the Commission's referee found that the retaliation theory was not supported by any evidence adduced at the hearing, and the Commission's referee rejected Ms. Harrell's and Ms. Prater's self-serving testimony denying any abusive conduct. The Commission referee's comprehensive findings of fact specifically focusing on the abusive actions demonstrated by Ms. Harrell and Ms. Prater included:
Additionally, the Commission referee found that during the investigation of the abuse allegations, the Pinecrest residents at Home 315 were examined for evidence of physical abuse, but none was found. And in contrast to Pinecrest's evidence, Ms. Harrell and Ms. Prater presented the testimony of fifteen other employees that worked in some capacity at Home 315, all of whom declared that they saw no signs of abusive behavior by Ms. Harrell or Ms. Prater toward Pinecrest residents. Because
After careful review of the record as a whole, we conclude that the factual findings of the Commission's referee were not manifestly erroneous. We do not re-weigh the evidence, or make our own credibility determinations regarding the witnesses, or substitute our findings for those of the Commission and its referee. See Louisiana Household Goods Carriers v. Louisiana Public Service Com'n, 99-3184 (La.6/30/00), 762 So.2d 1081, 1085. Our function is to determine whether a reasonable factual basis exists in the record to support the Commission referee's determination that it was more likely than not that the abuse occurred as detailed by Pinecrest. Although two of the eyewitnesses' testimony was admitted into evidence through written statements given to the investigators, hearsay evidence is admissible in administrative hearings if competent and relevant. See Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, 382. The general rule in administrative hearings is to allow hearsay evidence and to recognize that the inability to cross-examine the declarant affects the weight that the evidence carries. Id.
Moreover, ex parte statements are acceptable in a hearing before the Commission or its referee in order to discredit a witness. See Civil Service Rule 13.19(g).
In addition, the testimony of Johnny Simon and Kemberly Freeman directly contradicted Ms. Harrell's and Ms. Prater's testimony. The evidence in the record reveals a more than sufficient factual basis to support the factual findings of the referee, which were adopted by the Commission. Specifically, we find reasonable the referee's decision to credit more weight to the testimony of the independent investigators, as well as the four eyewitnesses that actually performed their jobs involving direct care for Home 315 residents under Ms. Harrell's and Ms. Prater's supervision, because they had an opportunity to observe the abuse. Accordingly, the Commission's referee committed no manifest error and we find no merit to Ms. Harrell's and Ms. Prater's first two assignments of error.
Ms. Harrell and Ms. Prater also assert that the Commission's referee erred in rejecting the un-rebutted testimony of their polygraph expert's opinion that Ms. Harrell's denial of the allegations was not deceptive. The referee allowed the introduction of Ms. Harrell's polygraph test results into evidence through the expert testimony of James D. Kavanaugh, a licensed polygraph operator in Louisiana. Additionally, Ms. Harrell and Ms. Prater complain that the referee erred by improperly cross-examining Mr. Kavanaugh regarding his testing method, study, and peer review of polygraph examinations.
The Commission referee may examine and cross-examine any witness in any civil service hearing. See Civil Service Rule 13.19(h); Goudeau v. Dept. of Public Safety, Div. of State Police, 349 So.2d 887, 889-890 (La.App. 1 Cir.), writ denied, 351 So.2d 165 (La.1977). And while the results of a properly administered polygraph examination are admissible under certain conditions in an administrative hearing, the polygraph test is merely a tool to assist the fact finder; it is the Commission referee's responsibility to determine the weight of the evidence after determining if it is competent and relevant. See Evans v. DeRidder Mun. Fire, 815 So.2d at 67-68 & 71. We note that contrary to the factual scenario presented in Evans, Ms. Harrell and Ms. Prater never questioned the admissibility of the polygraph evidence in this case. They offered the evidence to support their position that they did not abuse the Pinecrest residents. Instead, Ms. Harrell and Ms. Prater maintain that the Commission's referee improperly rejected the expert testimony regarding the polygraph evidence.
It is well settled in Louisiana that the fact finder is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. The fact finder may accept or reject in whole or in part the opinion expressed by an expert. Harris v. State ex rel. Dept. of Transp. and Development, 07-1566 (La. App. 1 Cir. 11/10/08), 997 So.2d 849, 866, writ denied, 08-2886 (La.2/6/09), 999 So.2d 785. Furthermore, the fact finder may accept or reject the uncontradicted opinions expressed by an expert as to ultimate facts, based upon the other evidence that is admitted. The effect and weight to be given expert testimony is within the broad discretion of the fact finder, and the decision reached by the fact finder regarding expert testimony will not be disturbed on appeal absent a finding that the trial court abused its discretion. Louisiana State Bar Ass'n v. Carr and Associates, Inc., 08-2114 (La.App. 1 Cir. 5/8/09), 15 So.3d 158, 171, writ denied, 09-1627 (La.10/30/09), 21 So.3d 292. Having thoroughly reviewed the polygraph evidence and the related expert testimony, we find no abuse of the Commission referee's discretion in declining to assign any weight to the testimony of Mr. Kavanaugh and/or the results of the polygraph test after allowing the evidence to be admitted.
We also note that although the Commission referee failed to make an express finding of detriment to the efficient and orderly operation of the public service for which Ms. Harrell and Ms. Prater were employed (the care and supervision of Pinecrest residents), such a finding is clearly implicit in the decision and abundantly reflected in the record. See Brown, 917 So.2d at 531. Common sense dictates that hitting or threatening nonverbal, mentally and physically-disabled people with hand-weights in order to control their behavior is clearly prejudicial and detrimental to the efficient and orderly operation of the public service that involves the care and support of special-needs residents in an institution specifically designed for that purpose.
A reviewing court should not reverse the Commission's conclusions as to the existence of legal cause for dismissal and that a punishment is commensurate with the infraction, unless the decision is arbitrary, capricious, or an abuse of discretion. Sterling v. Dept. of Public Safety & Corrections, Louisiana State Penitentiary, 97-1959, 97-1960, 97-1961 (La.App. 1 Cir. 9/25/98), 723 So.2d 448, 455. The Commission has much discretion in determining the appropriate disciplinary action
For the above-outlined reasons, we find the record fully supports a finding of legal cause and the disciplinary action of termination. Therefore, the decision of the State Civil Service Commission terminating Clara Harrell and Brenda Prater from their permanent positions at Pinecrest Supports and Services Center is hereby affirmed. All costs of these consolidated appeals are equally assessed to Clara Harrell and Brenda Prater.
GAIDRY, J., concurs.