Advisory Memorandum #94-11 (see 1800 Appointments, or 2200 Separations & Leaves) was intended to provide agencies with an overview and information on several issues. This Policy Bulletin provides more definitive information on the topic of "Contingent Permanent Employees Affected by Return of Incumbents."
The Advisory Memorandum states:
"Whenever any such "contingent" permanent employee requests return to a hold item his or her seniority date must be compared with the seniority date of any other "contingent" permanent employee who also wishes to return at the same time, if any, and the seniority date of the current "contingent" permanent incumbent. Only the most senior employee can be restored, or retain his or her incumbency."
This statement has generated some confusion by being read as relating to the return of the prior permanent incumbent, and as being, therefore, contrary to Rules 4.11 and 4.12, and the procedures in Policy Bulletin #88-02. The statement relates, however, NOT to the return of the prior permanent incumbent but to the attempted return of the one or more "contingent" permanent employees appointed to the same position.
Rules 4.11 & 4.12 only provide for two permanent appointments to a position; one permanent and one "contingent" permanent. It is the Department's policy therefore that these rules are concerned with the rights of the one employee who is appointed permanently to a vacancy and subsequently given a leave of absence, and when that employee can return, and to which position. Policy Bulletin #88-02 should be applied in those cases. However, where agencies have made subsequent multiple "contingent" permanent appointments to the same position, the following policies and procedures will apply:
EXAMPLE 1: In the example shown at the right, 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, & 4.11 are concerned with A's rights, who, if he/she is serving as a probationer at the G-23 level, or as a provisional, or assuming the position was a non-competitive or exempt class position, always 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 to the G-18 position than C. Therefore their seniority dates are compared and the more senior gets the job.
"Seniority date" means seniority as would be calculated as if this were a layoff. [Please note that probationary status is not relevant in making this comparison]
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 Policy Bulletin #88-05 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 are serving in the G-18 title in the work location. [Please remember that just because APPS 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 3 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, 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 these changes in conception about the rights of "contingent" permanent employees also apply to Rule 4.5, Probation, and Rule 4.10, Temporary, provisional, or trainee appointment or promotion of permanent employee.
Employees appointed "contingent" permanent and given a mandatory leave pursuant to these rules do not have the same rights to return to a hold item as a permanent (i.e., not appointed under Rule 4.11 or 4.12) employee. As a result of these changes the "contingent" permanent employee's right to return depends on having more seniority than any "contingent" permanent incumbent who may be currently serving in a position in that title in the location.
SEE ALSO POLICY BULLETIN #94-04 IN 2200 OF THIS MANUAL