During a career in state government, an employee in the classified service may be selected for a position in the unclassified service. Maine law and Civil Service Rules contain provisions that allow a classified employee to take leave from the classified service to accept employment in the unclassified service, while retaining certain "return rights" to his or her previous classified position. It is important to note that return rights are not automatic and vary according to the type of unclassified position to which he or she may transfer, promote, or demote. The provisions of Maine law and Civil Service Rules that are described below do not apply to an employee who chooses to resign his or her classified position in order to accept employment in the unclassified service.
Leave from the classified service to an unclassified "major policy influencing" position is provided in 5 MRSA, § 931, sub-§ 2., C-E. The law provides a "return right" to a classified employee who accepts an appointment to an unclassified "major policy influencing" position. Leave to a "major policy influencing" position is not subject to approval by the appointing authority, but the statutory "return right" to the former position is limited to one year. (NOTE: An appointing authority may consider a longer leave to a "major policy influencing" position as provided below.)
Leave from the classified service to any unclassified position is provided in Civil Service Rules, Ch. 11, Sec 3., C. In this situation, approval of the leave is at the discretion of the appointing authority. The appointing authority has several options:
- The leave may be granted without restriction. That is, as long as the classified employee holds the unclassified position.
- The leave may be denied.
- The leave may be limited to a fixed period of time.
If leave is not approved, or if the employee chooses to continue in the unclassified position beyond the approved length of time, he or she must resign their classified position to continue employment in the unclassified position.
If leave is approved, the employee retains the right to return to his or her classified position for the period of approved leave. In addition, Civil Service Rules extend the return right to one year after termination from the unclassified appointment (NOTE: This should not be interpreted as one year after termination from the approved leave. An unclassified appointment may end, voluntarily or involuntarily, prior to the end of the approved leave.) This return provision should be taken into consideration by the appointing authority when reviewing a request for leave to the unclassified service. The leave must be approved by the Director, Bureau of Human Resources, but overruling a recommendation by the appointing authority would be unusual.
If a leave to the unclassified service is approved, the appointing authority may fill the employee's classified position on an acting capacity basis. The acting appointment would be terminated upon the employee's return from the unclassified service.
FOR FURTHER INFORMATION:
5 MRSA, § 931, sub-§ 2., C-E
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