Former employees alleged they were the target of selective prosecution in administrative disciplinary action

Former employees alleged they were the target of selective prosecution in administrative disciplinary action
Bey v New York City Civil Service Commission, Supreme Court, Justice Madden, 2001 NY Slip Op 30058(U), [not officially reported]

New York City conducted an investigation to determine which employees were claiming tax-exempt status or were claiming an excessive number of exemptions. About 1,400 City employees were identified, including the Bey correction officers.

Pedro Rivera Bey, Oba Hassan Wat Bey, Edward Ebanks, Herbert L. Hinnant, and Michael Nichols [hereinafter collectively referred to as Bey] are former tenured New York City Correction Department officers.

Identifying themselves as "Black and of Moorish national origin,” and believing that they were exempt from federal and state taxes, they filed Federal and New York State tax forms claiming exemptions from income tax withholdings. Some of these correction officers also filed IRS forms for nonresident aliens or filed self-made forms entitled "Certificates of Foreign Status for Moorish-Americans."

In April 1998, the Correction Department served disciplinary charges alleging that the Bey employees had engaged in conduct unbecoming an officer by: 1) knowingly submitting Federal and State tax forms falsely claiming exemption from taxation; 2) submitting false tax information with the intent to defraud the State of New York; and 3) violating their oaths of office by submitting documents disclaiming their United States citizenship.

The City's Office of Administrative Trials and Hearings [OATH] held a joint hearing for 17 Correction Department employees pursuant to Civil Service Law Section 75. OATH found that Bey and his co-plaintiffs were guilty of all charges filed against them except their alleged "disclaiming of their United States citizenship." The Department imposed the penalty recommended by OATH: termination.

In response to an appeal filed by the Bey employees pursuant to Section 76 of the Civil Service Law, the City's Civil Service affirmed the Correction Department's dismissal Bey correction officers.

Bey's appeal to State Supreme Court set out several claims but only one survived: the claim that "[t]he charges, the hearing procedures and the discharge of the [Bey officers] violated their statutory and constitutional rights." The Supreme Court justice ruled that Bey raised a triable issue when he alleged that employees who were not Moorish-Americans and who engaged in the same or similar misconduct, were permitted to change their W-4s and, further, these employees were not discharged.

Justice Madden ruled that assuming that the allegations in Bey's petition were true, it is sufficient to raise the only issue here subject to judicial review pursuant to Article 78 of the Civil Practice Law and Rules: the constitutional claim of selective prosecution.

In making a claim of selective prosecution, the individual alleges that he or she has been denied his or her constitutional right to equal protection of the laws as guaranteed by the 14th Amendment and the New York State Constitution forbidding a public authority from applying or enforcing an admitted valid law "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circum­stances.

According to the decision, both the "unequal hand" and the "evil eye" requirements must be proven: i.e., there must be not only a showing that the law was not applied to others similarly situated but also "that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification."

The court said that Bey's petition alleges that he and his co-correction officers were singled out based upon their race, religion and, or, national origin, because the Correction Department and other City agencies permitted "other employees" who were not "Moorish-American" to change their withholding forms, and no disciplinary charges were filed against them and they were not discharged.

As these allegations were found sufficient to state a cause of action for impermissible discriminatory prosecution, the court dismissed all of Bey's allegations except those dealing with the selective prosecution claim and said that a trial was required to resolve this issue.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2001/2001_30058.pdf