Reinstatement to a position in the classified service following appointment to a position in the unclassified service with the State University of New York

Reinstatement of an individual to a position in the classified service following his or her appointment to a position in the unclassified service with the State University of New York

Question: May an individual with permanent status who resigned from a position in the competitive class of the Classified Service to accept a position with the State University of New York in the Unclassified Service* be reinstated to a position in the competitive class following his or her separation from his or her State University of New York position in the Unclassified Service?

Response: In NYPPL's editor's opinion, the rules applicable in such a situation** are as follows:

1. An employee who resigns from his or her permanent appointment then serving in a position in the competitive class to accept a position with the State University of New York in the Unclassified Service is eligible for reinstatement:

a. With his or her former agency in the same position, or in a similar or lower grade position, except that such a reinstatement cannot be made in the face of [i] a special military list established pursuant to §243.11 of the Military Law;*** or [ii] a preferred list.

b. A different department or agency in the same title and grade, or in a similar or lower grade position, except that such a reinstatement cannot be made in the face of [i] a special military list; [ii] a preferred list; [iii] a "department or agency" promotion list; or [iv] an existing promotion field in that department or agency.

2. For the purposes of reinstatement and similar personnel rights and considerations, service in the classified service is not deemed to be a "break in service" by reason of an intervening unclassified service employment.

* See also, §355-a.10 of the Education Law, "Salary, status, and accumulated leave credits of employees whose employment changes as between the classified and the unclassified service," for additional provisions of law applicable to incumbents of positions in the State University upon the jurisdictional reclassification of his or her position. 

**N.B.  Note 4 NYCRR 5.4, RULES FOR THE CLASSIFIED SERVICE, provides as follows:

A permanent employee who has resigned from his position may be reinstated, without examination, within one year from the date of such resignation in the position from which he resigned, if then vacant, or in any vacant position to which he was eligible for transfer or reassignment. In computing the one-year period within which a person may be reinstated after resignation, the day the resignation takes effect, any time spent in active service in the military or naval forces of the United States or of the State of New York, and any time served in another position in the civil service of the same governmental jurisdiction shall not be counted. In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his former position more than one year after resignation. For the purpose of this section, where an employee on leave of absence resigns, such resignation shall be deemed effective as of the date of the commencement of such leave.

*** Persons not covered by the provisions of §243.11 may be entitled to have their names placed on a "military reemployment list" pursuant to §243.12 of the Military Law.