New York Court Rules In Favor Of Guard With Nazi Flag

July 7, 2008 - 8:02 PM

( - The New York State Court of Appeals, the state's highest court Tuesday in a 7-0 decision, refused to overturn an arbitrator's order reinstating Edward Kuhnel, a prison guard, whom state officials tried to fire because Kuhnel flew a Nazi flag at his home.

In its decision, the Court said that "as abhorrent as Kuhnel's personal conduct is, judges cannot reject the factual findings of an arbitrator simply because they do not agree with them."

Kuhnel was suspended from his job at the Eastern Correctional Facility in 1996 after a Middletown, New York newspaper published a photo of a Nazi flag flying outside his home.

The state of New York had argued that Kuhnel's continued presence in prisons could trigger racial violence. He had been reinstated to his position in 1997 with full pay and benefits while the court fight went on.

Kuhnel, himself, had no comment on the court ruling. His attorney, Richard Casagrande, told that "the court reached the correct result. It upheld the contract and the arbitration process. We're obviously pleased with the decision. He's [Kuhnel] glad. It's been a long wait for him and he's glad that the state's highest court upheld his reinstatement."

However, the New York State Department of Correctional Services wasn't happy about the high court's ruling.

"Our position is that the arbitrator now carries the responsibility for ordering the department to return an avowed Nazi into a position of authority in a maximum security prison, " Jim Flateau, a spokesman for the New York State Department of Correctional Services told

Flateau also said the arbitrators original decision on Kuhnel was based on two findings.

"The arbitrator found, well, you guys are alleging a potential action among the inmates if this guy [Kuhnel] returns, but you cannot show any actual damage that his participation or membership in the Nazi party has caused. Our response to that is, we don't give drunk drivers the opportunity to kill someone before we take off the road, so preventative action is allowable under New York state law. So, we don't agree with the arbitrator on that issue," Flateau told

Flateau said the case first went to New York State's Appellate Division, which is the division above the trial state supreme court in the New York judicial system, which is one rank below the state's highest court, the Court of Appeals.

"When this went to the Appellate division, the minority held that there is a strong public policy against employees in the prison system who affiliate with racist groups. Again, they were the minority but they still made that point. Therefore, the (Correctional Services) Department will continue to take action against employees who threaten the safety of our prisons by membership in racist or discriminatory groups. We just don't believe that they have any place in the prison setting," Flateau said.

Governor George Pataki (R-NY) was also unhappy with the ruling.

"We think it's absurd to allow this type of hatemongering in our prison system. We're going to look at legislative and/or administrative remedies," Michael McKeon, a spokesman for Governor Pataki in Albany told