This memorandum provides information for agencies on policies and procedures applicable to the protections provided pursuant to Classified Service Rule 4.2(d), (e) and Civil Service law §121.4.

Permanent competitive class employees who are serving in positions which have been reclassified and who are now serving provisionally in these positions have limited protections from displacement by promotion lists (Rule 4.2(d)), open-competitive lists (Rule 4.2(e)), and preferred lists (C.S.L. §121.4) being certified against them. The Department of Civil Service has extended this protection to include transition lists and reemployment rosters. [NOTE: However, these rules and this memo also apply to non-competitive and labor class employees whose positions are reclassified to the competitive class. The issue is "tenure" protection, and reclassification cannot be the method by which any tenured employee is removed.]

Discussion and Background

Permanent status provides state employees with a number of rights and protections. rules 4.2(d) and 4.2(e) and §121.4 define the permanent status protections of permanent competitive class employees who have had their positions reclassified and are now serving provisionally in their reclassified positions.

The intent of the rules and law is that eligible lists and preferred lists shall not force the layoff or reassignment of these employees, and (in Rule 4.2) that a reasonable opportunity be provided for such provisional employees to attain permanent status in their reclassified positions.

The rules and law are not intended to perpetuate provisional appointments, to limit or eliminate the competitive examination process, to circumvent the rule of three, or to prevent eligible employees from being permanently appointed. It is within this context that the following policies and procedures are applicable.

In the discussion of these policies and procedures it is important that certain terms be clearly understood:

Vacant position - a vacant position in a provisional's former title is considered to be available for the provisional to return to when the provisional can be appointed on a permanent basis in the same location. [NOTE: a temporary vacancy is considered a vacant position for this purpose. See NOTE below.]

1. Same location - Rule 4.2(d) and (e) specify that the use of a list shall not force the reassignment of a permanent employee to a different geographical location. For purposes of this rule, as well as for other references in law or rule to geographic location, we have always defined geographic location as county.
2. Agency - For purposes of the location of available vacancies to which a provisional may be returned, the position must be within the same appointing authority..

Your staffing services representatives will assist you with the procedural aspects of these policies.

Civil Service Policies Applicable to the Administration of Rules 4.2(d), (e) and §121.4

Who is Covered

1. Rules 4.2 (d) and (e) and §121.4 apply only to those provisionals who are permanent competitive class employees, and whose positions have been reclassified.
2. Rule 4.2 is applicable only when an eligible list exists at the time of the reclassification, or when an eligible list is established and such a provisional is serving in a title for which the list would be certified.
3. §121.4 is applicable only when a preferred list or reemployment roster exists at the time of reclassification, or when one of these lists is established and such a provisional is serving in a title for which one of these lists would be certified.
4. Reclassifications need not necessarily have been to a higher salary grade title for Rule 4.2(d) and (e), and §121.4 to apply.

Who is Not Covered

1. Provisionals are not afforded the protection of rule 4.2 if:
   1. vacant positions in the provisionals' former title exist in the agency in the same location, or
   2. the provisionals have twice failed to qualify for permanent appointment to the reclassified position, or
   3. the provisionals are eligible for permanent appointment to the reclassified position on the list which would be certified, or
   4. the provisionals are otherwise eligible for permanent appointment to the reclassified position (e.g., via transfer, reinstatement, etc.), or
   5. the eligible list contains the names of at least 3 acceptors and an appointment from the list will create a vacancy in the provisionals' former title in the agency in the same location.
2. Provisionals are not afforded the protection of §121.4 if vacant positions in the provisionals' former title exist in the agency in the same location, or if an appointment from the preferred list or reemployment roster will create a vacancy in the provisionals' former title in the agency in the same location.

Policies Applicable at the Time of Reclassification of a Permanent Competitive Class Employee's Position [Again this applies to NC & Labor class employees]

1. If employees are eligible for permanent appointment to the reclassified position, either from a list or through transfer or reinstatement, they must either be appointed permanently, or be reassigned to a position in the former title in the same location. Rule 4.2(d), or (e) or §121.4 are not applicable. Such employees may not be appointed provisionally.
2. If employees are not eligible for permanent appointment to the reclassified position and
   1. there are vacant positions in the former title to which they can return, and
      1. no eligible list, preferred list or reemployment roster exists, then the employees my be appointed provisionally, and must be given leave from the vacant positions; or the employees must be reassigned to the vacant positions.
      2. an eligible list exists but with less than 3 acceptors, then employees my be appointed provisionally and must be given leave from the vacant positions, or oust be reassigned to the vacant positions, or the agency may use the list and reassign such employees to the vacant positions.
      3. an eligible list exists with 3 or more acceptors or a preferred list or reemployment roster exists, then the employees may not be appointed provisionally and must be reassigned to the vacant positions; the agency may use the list.

   b. there is not a vacant position to which the employees can return, and

   1. an eligible list, preferred list or reemployment roster exists, then the employees must be appointed provisionally but must be provided with preferred list status for the former title (see procedures below)
   2. an eligible list exists but with less than 3 acceptors, then Rule 4.2(d) or (e) is applicable and the employees must be appointed provisionally and must be provided with preferred list status. However, the agency way use the list and return the employees to vacant positions which are thus created, if they wish.
   3. an eligible list exists with 3 or more acceptors, then Rule 4.2(d) or (e) is applicable and the employees must be appointed provisionally and must be provided with preferred list status. However, if an appointment from the eligible list would create a vacant position in the former title, Rule 4.2(d) or (e) is not applicable and a provisional appointment may not be made. [NOTE: this would obviously be a temporary vacancy in the case of a promotion list and maybe an OC list since the eligible would be/might be on leave for the duration of his/her probationary period. This does not alter our policy on this issue. See NOTE above.]
   4. a preferred list or reemployment roster exists, then §121.4 is applicable and the employees must be appointed provisionally, and must he provided with preferred list status. However, if an appointment from the preferred list or reemployment roster would create a vacant position, §121.4 is not applicable and a provisional appointment may not be made.

Policies Applicable After Provisional Appointments have occurred

1. As soon as vacancies in the former title occur in the location, agencies must provide a hold item for provisionals serving in a reclassified position to return to in the event that a list is established and the provisional is not eligible for permanent appointment.
2. Permanent employees now serving provisionally in reclassified positions who become eligible for permanent appointment may be appointed despite the existence of preferred lists or reemployment rosters if they are protected by §121.4.
3. If permanent employees now serving provisionally in positions which have been reclassified are not eligible for permanent appointment and not protected by Rule 4.2(d), or (e), or §121.4 and no vacant positions are available in the agency and location, then agencies must request. that the position be reclassified back to the provisionals former title and the provisionals permanently reappointed.

Procedures

1. Preferred List Status for Provisionals
   When permanent employees whose positions have been reclassified are appointed provisionally and no vacant position in the former title and location are available from which they can be given a leave, the agency must prepare and forward preferred list/reemployment roster eligible cards (S-295.5) for the employees for the former titles. The only county which may be checked on the S-295.5 is the county in which the former title/position exists. Agencies must write "reclassification" on the card under "PL/RR status due to:". The employee will be placed on preferred lists only for their former title, agency and location. Agencies must notify the employees of their preferred list rights and limitations. The employees are placed on the preferred list effective the date of the reclassification and provisional appointment.
2. PR-75's
   1. When submitting PRr75's appointing a permanent employee provisionally to a reclassified position and either or both Rule 4.2(d) or (e) and/or §121.4 are applicable, agencies must indicate the appropriate Rule or Section of the law in the remarks section of the PR-75s. Agencies must also note in "remarks" that forms S-295.5 (Preferred List/Reemployment Roster eligible cards) have been sent.
   2. When submitting PR-751s appointing permanent employees provisionally to reclassified positions and neither Rule 4.2(d), (e), nor 121.4 are applicable since vacant positions in the former titles and same locations are available, agencies must indicate that the employees are being placed on leave from the vacant positions. "C.S. info" should appear in one of the miscellaneous boxes and a statement that the employees are being given a leave should appear in "remarks" with the item numbers.
   3. When vacant positions become available in provisionals' former titles, and employees' names have been previously placed on preferred lists, agencies must submit PR-75s permanently reinstating the employees from the preferred list. The employees may be simultaneously provided with a leave to continue serving Provisionally (See 2a).

3. Employee eligibility for permanent appointment

   1. At the time of reclassification agencies must determine if employees are eligible for permanent appointment to the reclassified positions either by list appointment, transfer or reinstatement.
   2. When eligible lists, preferred lists or reemployment rosters are established all provisionals will be revoked. Agencies must notify their staffing services section that provisionals are eligible for continuing protection under Rule 4.2(d) or (e) or §121.4 and resubmit PR-75's.