Artificial Intelligence [A.I.] is not used, in whole or in part, in the preparation of summaries of judicial and quasi-judicial decisions posted on the Internet by NYPPL.

January 31, 2022

Determining if a party has waive the right to litigate an issue or has failed to exhaust relevant administrative remedies

Plaintiff did not waive her right to seek remedies under Civil Service Law §75-b merely as a result of her filing a prior federal complaint in which she sought, inter alia, relief under both New York's Labor Law §740 and New York's Civil Service Law §75-b nor was plaintiff required to exhaust her administrative remedies under the applicable collective bargaining agreement prior to commencing this action as  "[t]here is no need to exhaust administrative remedies when the cause of action by the plaintiff is not governed by the collective bargaining agreement."

Click HEREto access the Appellate Division's decision.


New York Public Personnel Law handbooks

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE.

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.


January 22, 2022

In-person schooling is not without risks

On January 21, 2022, the Albany Times Union published the Letter to the Editor set out below by NYPER science consultant Robert A. Michaels captioned In-person schooling is not without risks

Dr. Michaels' Letter to the Editor is set out below:

In-person schooling is not without risks

With surging COVID-19, New York City Mayor Eric Adams defended his policy of retaining in-person schooling: “Fear not sending them back. … The safest place for children is inside a school.” This statement might have a grain of truth, but it should be taken with a shaker full of salt.

With in-person instruction, students and teachers bring risks from home to school. Then they return home and mingle with their families and neighbors. Adams failed to consider this home-school synergy. In-person instruction imposes school risks, even if low, on the full home-plus-school population.

This raises the civics issue of the proper relationship of science and policy. Adams must make COVID-19 policies, such as in-person schooling. He reasonably might balance infection risks versus social and economic risks. He should not, however, base policies on invalid science.

School risks, as Adams said, might be lower than home risks, but they would be zero if instruction were remote. In-person schooling poses an incremental COVID-19 infection risk. Even if low, it must be applied to the full school-plus-home population that will bear it.

In short, policy should comport with science, even if it is not solely determined by science.



Also cited on the Internet by ResearchGate at:

January 08, 2022

Focus on preventing new Covid-19 cases

On January 8, 2022, the Schenectady Gazette published the Letter to the Editor set out below submitted by NYPPL science consultant Robert A. Michaels, PhD, CEP.  

In view of the significance of Dr. Michaels' remarks, this item is posted per bono.


I recently published the hypothesis that SARS-CoV-2 might enter organs, such as the brain, where immune surveillance is ineffective.

An NIH study soon confirmed this. The virus could persist, reactivating when we become weaker. The weight of evidence now suggests that Covid and long Covidcould become lifelong Covid. 

Opportunistic virus reactivation is common. Childhood chicken pox becomes adult shingles. ‘Cured’ Ebola re-emerges years later, without external reinvention. Yet, the US FDA and CDC have remained overly restrictive regarding vaccine boosters.

Our overriding priority should be on preventing as many COVID-19 cases as feasible, not tolerating them because they tend to be mild. Even mild cases might impose future health and economic burdens. We therefore must adopt the precautionary principle. 

That is the lesson we should have learned from Michael Crichton’s infamous Jurassic Park. Lacking dinosaurs, our communities are microbial Jurassic Parks. They must separate people from a vaccine-escaping virus, for example, via colleges conducting classes remotely.

Omicron is more vaccine-resistant than previous variants. All are evolving toward still greater infectivity, and the pace of this evolution seems to be accelerating. These challenges may overcome careful containment plans, as happened in the real (that is, fictional) Jurassic Park. 

A ‘new normal’ is around the corner. Pharmaceutical firms are developing vaccines tailored to emerging variants within 100 days, and this process already is under way for omicron. The U.S. Army soon will conduct clinical trials of an mRNA vaccine to protect against all corona viruses, including future variants. To quote Pete Seeger: we shall overcome. 

Robert A. Michaels, PhD, CEP
The writer is president and toxicological health risk assessor at RAM TRAC Corporation in Schenectady, New York.

Former treasurer of Frewsburg Central School District pleads guilty to stealing nearly $7,000 in school funds

On January 7, 2022, New York State Comptroller Thomas P. DiNapoli and District Attorney Jason Schmidt announced the resolution of another case of "jobbery"* with the arrest and guilty plea of Angela Smoulder, former Treasurer of the Frewsburg Central School District, for stealing nearly $7,000 in funds raised by students to support their extra-classroom activities. Full restitution was recovered from Ms. Smoulder. 

Comptroller DiNapoli said “Ms. Smoulder betrayed the students she was obligated to serve by stealing money that they raised themselves to help pay for their extracurricular activities,” DiNapoli also thanked "Chautauqua District Attorney Schmidt and his office for partnering with us, bringing this corruption to light, and recovering the stolen money for the students of Frewsburg.”

The Comptroller press release noted that "Smoulder, 27, stole $6,982 in cash from the Frewsburg Central School District’s extra-classroom activities account and attempted to conceal her theft by substituting the stolen funds with checks from the school district retirees’ health insurance account, among other things. Students raise and spend extra-classroom activity funds to promote the education and morale of all students and to finance extracurricular activities. Those funds are collected by students from several sources, such as admissions, membership dues and sales. The thefts occurred between March and August 2019. 

"The school district superintendent reported the theft after Smoulder resigned. The Comptroller’s forensic analysis of the scholarship account revealed Smoulder’s manipulation. 

"Smoulder pled guilty to a petit larceny, a class A misdemeanor and paid full restitution to the district in the amount of $6,982.42.

"The arrest is a result of a joint investigation between the State Comptroller’s Office and Chautauqua District Attorney Jason Schmidt." 

* The Oxford International Dictionary defines "Jobbery" as "the practice of using a public office or position of trust for one's own gain or advantage."


Since taking office in 2007, DiNapoli has fought public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money can be submitted by calling the toll-free Fraud Hotline at 1-888-672-4555, by mailing a report to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236, or by emailing a report addressed to


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor members of the NYPPL staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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