Says Kerik Discriminated
Permit Suit by COs Fired in Tax-Dodge

By RICHARD STEIER

A Federal Appeals Court in Manhattan has reinstated a lawsuit filed by former Correction Officers who claim they were singled out by the Correction Department when they were fired for false tax filings.

BERNARD B. KERIK: Accused of selective firings.

In overturning a lower-court ruling that threw out the suit at the request of city attorneys, the three-judge panel concluded that the ex-COs might have been treated differently from other COs who made similar filings only because they belonged to a group that was perceived to be violent.

Security Issue

They ruled that the U.S. District Court Judge who initially heard the case did not have sufficient information to conclude that the COs, who described themselves as Moors, were members of the Great Seal Association of Moorish Affairs. The NYPD a decade ago identified the Great Seal Association as a group involved in armed robberies and the sale of automatic weapons.

The appeals judges said there was a "paucity of information in the record to substantiate [city officials'] security concerns" if the COs identifying themselves as Moors had continued working in the jail system. They said it was not clear whether all members of the Great Seal Association were involved in criminal activity, or whether the plaintiffs had been "tarred with the brush of the activities of some of their co-religionists."

The panel also noted that the security concerns cited by the city in response to the lawsuit had not been raised during the Office of Administrative Trials and Hearings proceedings that led to the 2000 firing of the seven plaintiffs, Ntchwaidumela Bey, Ajama Jabari Bey, Agnes Bey, Wayne Bollinger Bey, Zamah El, Michael Flynn, and Albert Kelly.

1,000 CO Evaders

The seven were among more than 1,000 Correction Officers who during the 1990s sought to avoid having taxes withheld from their paychecks, either by claiming a false number of exemptions or stating that they were not subject to the laws of the United States.

About 70 of them were criminally prosecuted and, upon being convicted, were fired, the Court of Appeals panel noted. Among those who were not arrested, then-Correction Department Inspector General Michael Caruso recommended that 21 be fired. The seven plaintiffs in the case were part of that group. All 21 were terminated by then-Correction Commissioner Bernard B. Kerik in 2000.

The plaintiffs' attorney, Irene Donna Thomas, has charged that their First Amendment rights to free association were violated when they were fired, noting that 20 of those discharged professed to be members of the Moorish-American faith, and the 21st, Mr. Flynn, said he had been falsely identified by the Correction Department as belonging to it.

Claim Double Standard

They have pointed out that other individuals who avoided paying taxes, including John Picciano - who at the time of their firing was Mr. Kerik's Chief of Staff - were treated with much greater leniency and maintained their job status once they paid the back taxes. Those employees received at most minor discipline.

In defending the department's actions, city officials have stated publicly as well as in the court proceeding that the two groups could be distinguished by the fact that the non-Moors who evaded taxes either eventually paid what was owed or claimed to be immune from U.S. laws alone, while the Moors claimed they were immune from city laws as well as those of the nation. The appeals panel said this was a matter to be decided at trial, stating that "a jury might reasonably find that the fine distinction asserted [by the city] is a mere pretext for an animus against the Moors on the basis of their professed faith."

Wheel Turns for Kerik

Ironically, Mr. Kerik pleaded guilty last June to improperly receiving nearly $200,000 in funds from persons doing business with the city while serving as Correction Commissioner.

His guilty plea to two misdemeanor counts did not address whether he failed to report that money - much of which went to renovating an apartment he then owned in Riverdale - as income and pay taxes on it. There are reportedly ongoing Federal probes of Mr. Kerik's financial activities during his tenure as both Correction Commissioner and Police Commissioner.