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State Personnel Management Manual

Policy Bulletin #88-05

 1810 Continent Permanent
December 30, 1988

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 county.

  • 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 location.
  • For all other agencies, where there are two or more geographically distinct organizational units in the same county, each is a separate work location.

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.


  • 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 Services Representative.

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