1810 Contingent Permanent Appointments
.1 Legal Basis and Background
.110 While the term "contingent permanent" does not
appear in statute or in some previous versions of the Rules, it
has been reintroduced in the new Rule 4.11. The previous Rule
4.11 and 4.12 have been repealed.
.120 Contingent permanent appointments are those made to temporarily
vacant (i.e., encumbered) positions as distinguished from appointments
made to permanently vacant (i.e., unencumbered) positions pursuant
to other sections of Law and Rules.
.130 While Rule 4.11 provides the authority for contingent permanent
appointments, appointees must be otherwise eligible for appointment
the same as permanent employees to positions in the competitive,
non-competitive and labor classes.
.140 The policies and procedures below apply to all contingent
permanent appointments in the competitive, non-competitive and
labor jurisdictional classes.
.150 There is no provision in Law or Rule for contingent permanent
appointment to positions in the exempt class, and such appointments
may not be made to positions in this jurisdictional class.
.210 Contingent permanent appointments generally.
.211 Contingent permanent appointments may be made:
- to temporarily vacant positions, i.e., positions encumbered
by a permanent employee on leave of absence.
- to positions in which temporary or provisional employees are
serving if the contingent permanent appointee is granted an
immediate leave of absence, provided such positions are already
encumbered by a permanent employee on leave of absence.
.212 Contingent permanent appointments may not be made
- to vacant positions, i.e., positions unencumbered by a permanent
employee on leave of absence.
- to positions in which permanent or contingent employees are
.213 Generally employees may not be appointed simultaneously
permanent and contingent permanent to two positions in the
same title. [Exceptions: Certain appointments to positions
in other locations may be permitted if approved by the Staffing
Services Representative. See .214 below.]
.214 Reassignments to temporarily vacant ( i.e., encumbered)
BACKGROUND: Rule 4.11 provides for a contingent permanent appointment
"...through transfer, reinstatement, reassignment or appointment
from an appropriate eligible or reemployment list." In all
cases, except for certain reassignments, these contingent permanent
appointments are voluntary and employees may choose to either
accept the appointment and the concomitant risk of the return
of the prior permanent incumbent, or decline. Therefore, in accordance
with 4.11 (f):
- Permanent employees may not be involuntarily reassigned
to encumbered positions and have their status changed to contingent
permanent. (Exception: in layoff situations permanent employees
may be horizontally reassigned as part of the layoff process
to encumbered positions -- See the Guidelines for Administration
of Reductions in Force).
- Whenever agencies reassign permanent employees and there are
no vacant positions available, the agency either must move the
permanent employee's position along with the employee, or reassign
the encumbrances, or the employee may voluntarily accept the
reassignment provided he/she fully understands the consequences
of such a contingent permanent appointment and agrees in writing
to accept such reassignment. [Exception: With the prior approval
of the Staffing Services Representative, the employee may be
given a leave from his/her permanent position.]
.215 Multiple contingent permanent appointments:
While Rule 4.11 (e) (3) provides that contingent permanent employees
may be given a leave, nowhere in the rule are subsequent contingent
permanent appointments to that same position addressed. This department
recommends that such personnel transactions be kept to a minimum
since they may require special procedures when incumbents return.
(See .242 below).
.220 Hold items upon contingent permanent appointment:
The purpose of the hold items required by Rule 4.11 is to provide
positions to which such employees may be restored in the event
of the return of prior permanent incumbents. The employees may
not return to these hold items for any other reason, except if
they are also probationers and return during their probationary
periods, (See .230 below).
.221 Contingent permanent appointment of individuals who are
not currently permanent state employees (e.g., appointed from
open-competitive lists, or reinstated) do not require a hold item
be identified at the time of appointment. Agencies may, however,
at their discretion, designate a vacant position as a hold item,
either at the time of appointment or later, provided the employee
is qualified to fill such position in the event of the return
of the permanent incumbent.
.222 Contingent permanent appointments of current permanent
or contingent permanent employees to positions within an appointing
authority require leaves be granted from their current positions
and continued for as long as the employees remain contingent permanent.
(NOTE: A reassignment has special requirements. See .214 above.)
.223. Contingent permanent appointments of currently permanent
or contingent permanent employees to a position in another appointing
- May be made only if the new appointing authority provides
a permanent hold on a position in the employees' former permanent
title, or agrees in writing at the time of appointment to provide
such a position to which such employees shall be appointed permanently
and given a leave as soon as it becomes available.
- Where a permanent hold has been provided, this does not relieve
the former appointing authority of its legal obligation for
maintaining a hold item for the employee pursuant to Rule 4.5,
Rule 4.10 or negotiated agreements. (See .230 below)
.230 Probationary periods for contingent permanent employees.
.231 Contingent permanent employees serve probationary periods
in the same manner as permanent employees. (Rule 4.5) (See also
in this manual.)
.232 Contingent permanent employees may be granted a discretionary
leave of absence from their positions (Rule 4.11 (e)), and must
be granted a leave pursuant to Rule 4.5, 4.10 and negotiated agreements
if they receive an appointment covered by those Rules or agreements.
(See Policy Bulletins 98-02
in 2200 of this manual.)
.233 As probationers, contingent permanent employees may return
to their hold items at any time during their probationary period
- the prior permanent incumbent has returned and is serving
in the position, or
- another contingent permanent employee with greater seniority
has either returned or been subsequently appointed and is serving
in the position. (See .242 below)
.240 Return of incumbent: Rights of contingent permanent
employees to retain a position if affected by return of incumbent.
.241 BACKGROUND: Rule 4.11 (b) provides that contingent permanent
employees may not be separated if non-permanent employees and/or
other contingent permanent employees with a later appointment
date are also serving in the title in the same work location.
The following definition of "work location" and the
steps enumerated below must be applied where such situations exist:
Work location is defined, for the purposes of the following
procedures as that organizational unit of an agency which is located
in a specific county, provided, however, that:
- for the Office of Mental Health and the Office of Mental Retardation
and Developmental Disabilities, each facility and all the units
of that facility in the same county are considered to be one work
- for all other agencies, where there are two or more geographically
distinct organizational units in the same county, each is a separate
- If there are vacant positions in the work location,
contingent permanent employees must be reassigned to such
positions and appointed on a permanent basis. Such situations
should rarely occur. Rule 4.11 (c) requires that contingent
permanent employees be converted to permanent as vacant positions
become available. (See .250 below)
- If there are temporarily vacant positions in the
work location, contingent permanent employees may, at the
discretion of the agency, be reassigned to such positions.
- If there are provisional and/or temporary employees
serving in the same title in the same work location in positions
which can be filled on a permanent or contingent permanent
basis, contingent permanent employees affected by the return
of incumbent may not be separated, but must be reassigned
to such positions.
- Where there are no vacancies or non-permanent employees
in the title at the work location, and the agency chooses
not to offer reassignment to any temporary vacancies, the
contingent permanent employees at the work location must be
ranked among themselves according to their dates of contingent
permanent appointment to the title. The most recently appointed
contingent permanent employee is separated and placed on the
appropriate reemployment list. Where two or more such contingent
permanent employees have the same appointment date, the agency
should use a reasonable and consistent method to determine
which employee is separated. Information on separated employees
must be supplied to this department for placement on the appropriate
.242 Mulitiple contingent permanent appointments -
Identification of which contingent permanent employee may
retain a position when multiple contingent permanent appointments
have been made to the same position and an incumbent requests
to be restored:
BACKGROUND: Rule 4.11 provides for only two permanent appointments
to a position; one permanent and one contingent permanent.
It is this department's policy therefore, that the rule is
concerned with the rights of the one employee who is appointed
on a permanent basis to a vacancy and subsequently given a
leave of absence, and when that employee can return, and to
which position, and with the rights of the one contingent
permanent employee appointed to a temporary vacancy and given
a subsequent leave of absence, and when that employee can
return, and to which position. The policy in .240 above should
be applied in these cases. However, where agencies have made
subsequent contingent permanent appointments to the same position,
a practice which this department does not recommend,
the following policies and procedures will apply:
- The one prior permanent incumbent must be restored regardless
of the appointment dates or seniority dates of any contingent
- The contingent permanent employee having the greater seniority
shall either be restored, or be allowed to retain his/her
position. For the purposes of this determination, the earliest
date of original permanent appointment in the classified service
and continuous service since that date shall be used to determine
seniority, and "continuous service" will be as defined
by CSL §80.2. See the two examples which follow.
EXAMPLE 1: In the situation shown
at the right
below, employee A is appointed
permanently to the vacant G-18 position and given a leave
to serve at the G-23 level. Employee B is then subsequently
appointed CP pursuant to Rule 4.11 to the same position (now
a temporary vacancy) and given a leave to serve as a G-23.
Employee C is then appointed CP to the G-18 position.
Rules 4.5, 4.10, and 4.11 determine A's rights, who has the
right to return pursuant to, and subject to the limitations
of, these rules.
However if B has to return, he/she has no greater right according
to these rules to the G-18 position than C. Therefore their
seniority dates must be compared and the more senior employee
retains the position.
EXAMPLE 2: Now assume there are a number of positions
filled CP at the G-18 level. Assume A, originally appointed permanent,
is now serving provisionally at the higher level, and must return.
Rule 4.11 and the procedures in .240 above are used to determine
to which specific item he/she returns; i.e., that held by the
most recently appointed CP, either D, E, or F who is serving in
the G-18 title in the work location. [Please remember that just
because NYSTEP must show a leave from an item number, that does
not necessarily mean that A has a right to that specific item.]
However if B (who was appointed CP and granted a leave pursuant
to Rule 4.11) must return, then four CPs [B, D, E, & F] must
have their seniority dates compared to determine which three employees
will be retained. If B and C must return simultaneously, all five
would be compared. (These examples assume that there are no provisionals
or temps serving in the title and location, since such non-permanents
must be impacted first.) CPs who are not able to retain a position
are in turn returned to their hold items, if any, and have their
names placed on reemployment lists.
IT IS IMPORTANT TO NOTE THAT THE POLICIES AND PROCEDURES ABOVE
ALSO APPLY WHEN CONTINGENT PERMANENT EMPLOYEES ARE PROVIDED WITH
A MANDATORY LEAVE PURSUANT TO RULE 4.5, PROBATION, OR RULE 4.10,
TEMPORARY, PROVISIONAL, OR TRAINEE APPOINTMENT OR PROMOTION OF PERMANENT
EMPLOYEE. IF MULTIPLE CONTINGENT PERMANENT APPOINTMENTS HAVE BEEN
MADE ANY CONTINGENT PERMANENT EMPLOYEE'S RIGHT TO RETURN DEPENDS
ON HAVING MORE SENIORITY THAN ANY CONTINGENT PERMANENT EMPLOYEE
WHO MAY BE CURRENTLY SERVING IN A POSITION IN THAT TITLE IN THE
WORK LOCATION, OR THAN ANY OTHER CONTINGENT PERMANENT EMPLOYEE WHO
WISHES TO RETURN AT THE SAME TIME.
.250 Conversion of contingent permanent employees to permanent
BACKGROUND: Since contingent permanent employees are in jeopardy
of removal as a result of the return of the prior permanent incumbents,
it is appropriate that they be removed from that jeopardy as soon
as it is feasible to do so.
.251 Whenever a position becomes available to be filled on a
permanent basis the contingent permanent employee who was first
appointed to a position in that title in that work location whether
he/she is currently serving or has been placed on leave, must
be converted to permanent.
.252 Agencies may designate the organizational units or geographic
areas within which such conversions occur. However, agencies must
establish consistent policies for eligibility for such conversions
and keep track of the titles and positions in which contingent
permanent employees are serving, and from which contingent permanent
employees are on leave. This is particularly important since a
seniority based comparison is required where multiple contingent
permanent appointments have been made to the same position and
when a former contingent permanent employee must return.
.260 Layoff rights of contingent permanent employees:
The rights of contingent permanent employees in layoff situations
are the same as the rights of permanent employees. If affected by
layoffs, contingent permanent employees may not return to positions
which are being held for them solely for the purposes of return
of incumbent. For a more complete discussion see the Guidelines
for Administration of Reductions in Force, especially the topic
"''Contingent Permanent Employees" in Appendix A.
.270 Reemployment list rights of contingent permanent employees:
- affected by layoff are the same as permanent employees.
- affected by return of incumbent are determined by whether
or not they have been provided with an item to which they can
return. Those with a hold item are generally restricted to their
former title and current agency. Those with no hold item are
not so restricted.
.280 Restoration rights of contingent permanent employees:
Contingent permanent employees affected by return of incumbent
should be restored to any eligible list or reemployment list,
if still in existence, from which they received their contingent
.290 Pursuant to 4.11 (g) parts of the above may not apply.
TM-53 - All New Material - May 2002
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