PROCEDURES FOR RETURN OF INCUMBENT
RULES 4.11 AND 4.12
Unlike permanent employees appointed under other sections of the law
or rules, contingent permanent employees face the additional "jeopardy"
of being affected by the return of the prior permanent incumbents of
their positions. Therefore these rules provide certain contingent permanent
employees with rights to retain a hold item even though they have completed
probation. When contingent permanent employees are affected by a return
of incumbent, the determination of who is affected depends on whether
or not there are non-permanent employees serving in the title and, if
several contingent permanent employees are serving, on the relative
dates of their appointments.
When permanent incumbent employees return from leave to their former
positions, Rules 4.11 and 4.12 provide that contingent permanent employees
serving in those positions 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. However, the rules do not address
those situations where titles have numerous positions in various locations.
This memo is intended to specify the procedures agencies should apply
to determine which employees are affected by a return of incumbent,
and what rights these employees may have.
The principal assumption which underlies these procedures is that returning
permanent employees generally have a right to return to the positions
from which they are on leave. This is not to say that agencies cannot
reassign hold items and employees based on program need, but in the
absence this need, the returning permanent employee should return to
his or her position and former location.
If a contingent permanent employee is serving in the position to which
the prior permanent employee is returning, the agency must first determine
whether non-permanent employees are also serving in the title in the
same work location.
Work location is defined, for the purposes of these procedures, as
that organizational unit of an agency which is located in a specific
- 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 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, the contingent permanent
employee affected by the return of incumbent may not be separated, but
must be reassigned to one of these positions.
If there are vacant or temporarily vacant positions in the work location,
contingent permanent employees may, at the discretion of the agency,
be reassigned to such positions. Contingent permanent employees who
are reassigned to permanent vacancies must be appointed on a permanent
basis. (Such situations should rarely occur- see SPMM Policy Bulletin
#88-02; 1870 Contingent Permanent which requires that contingent permanent
employees be reassigned to vacant positions on an on-going basis as
positions become available.)
Where there are no non-permanent employees in the title at the work
location, and the agency chooses not to, offer reassignment to 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 preferred 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.
SOME POINTS TO REMEMBER
- Agencies may, at their discretion, offer contingent employees
affected by return of incumbent additional opportunities for reassignment
to positions in other work locations.
- Some contingent permanent employees may themselves be on leave
from a hold item; this may generate a "second round" of
return of incumbent determinations.
- The consequences of a return of a prior permanent incumbent are
governed by Rule 4.11 and Rule 4.12 and these situations should
not be confused with the displacement provisions of §80 or
§80-a. Neither seniority based on classified service date nor
probationary status has any bearing on the determination of which
contingent permanent employee is affected - only the date of contingent
permanent appointment is relevant.
Agencies with questions on this memorandum should contact their Staffing
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