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 The previous Rule 4.11 and 4.12 have been repealed.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.

.2 Policy

.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 currently serving.

.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) positions:

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 authority.

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 2010 Probation 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 and 99-01 in 2200 of this manual.)

.233 As probationers, contingent permanent employees may return to their hold items at any time during their probationary period unless:

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 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.

Procedural Steps:
1. 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)
2. 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. OR
3. 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.
4. 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 reemployment list.
.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:
1. The one prior permanent incumbent must be restored regardless of the appointment dates or seniority dates of any contingent permanent appointees.
2. 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 status:

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 permanent appointments.

.290 Pursuant to 4.11 (g) parts of the above may not apply.

TM-53 - All New Material - May 2002

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