CHAPTER 104 - STATE EMPLOYEES PROVIDING FOR PENSIONS IN CERTAIN CASES

AN ACT PROVIDING FOR THE PAYMENT OF PENSION BENEFITS TO CERTAIN STATE EMPLOYEES, FIXING AGES OF RETIREMENT, ESTABLISHING BENEFITS PAYABLE AND THE SOURCE OF PAYMENT THEREOF, PROVIDING FOR APPLICATIONS FOR PENSIONS AND THE PROCEDURE TO BE FOLLOWED WITH RESPECT THERETO, PROVIDING THAT PENSION BENEFITS SHALL BE FREE OF ATTACHMENT AND NONASSIGNABLE, AND ALSO PROVIDING FOR THE REDUCTION OF BENEFITS UNDER CERTAIN CONDITIONS.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. Name of Act; Effective:--This Act shall be called the "Delaware State Employees' Pension Act," and it shall become effective as of the date of its enactment.

Section 2. Eligibility; Option:--Every covered employee of the State of Delaware, now or hereafter employed, may be retired after such employee shall have served in covered employment for thirty-five years, or on or after attaining the age of sixty years in case of a female employee or the age of sixty-five years in case of a male employee, and shall after retirement during the remainder of his or her life receive the pension fixed by this Act, subject to such qualifications and reservations as are herein contained; provided that prior to July 1, 1947, any covered employee may continue active work at his option, irrespective of his age, provided he continues mentally and physically fit to discharge his duties, but on and after said date a covered employee may continue active work at the option of the head of the department or agency by which he or she is employed up to the age of sixty-five years for women or seventy years for men, at which time retirement shall be mandatory for covered employees. Nothing in this Act contained shall be construed to make mandatory the retirement of any employee who is not in "covered employment" as such term is hereinafter defined.

Section 3. Covered Employee Defined:--An employee shall be considered in "covered employment" while the employee receives, or in the case of service prior to the enactment of this legislation has received, a regular salary wholly or in part directly from the State Treasury, or from the Treasury through the following agencies within the State that are wholly or partly supported by the State and hereinafter referred to as subsidized agencies: State Board of Health, Old Age Welfare Commission and its sub-divisions, University of Delaware, school districts which are a part of the State school system, and the Board of. Public Education in Wilmington; provided that an employee of the Board of Public Education in Wilmington shall be considered in "covered employment" while the employee receives, or in case of service prior to the enactment of this legislation has received, a regular salary wholly or in part from or through the State Treasury and/or from the Treasurer of the City of Wilmington; provided, however, that an employee shall not be considered in covered employment (a) while employed in an office to which said employee had been elected by popular vote at a regular State election, or (b) while covered or potentially covered by the State Pension Act as a member of the State Police, or (c) while covered or potentially covered by the Retirement System of the University of Delaware.

An employee who shall be in covered employment on the date of retirement and who shall have served in covered employment for at least fifteen years during the period that ends on the date of retirement and that includes no interruption from continuous covered employment except allowable interruptions aggregating not over five years shall be considered a "covered employee" within the meaning of this Act.

Allowable interruptions from continuous covered employment shall be interruptions arising from (a) leaves of absence granted to employees for illness, research, travel, training, or study, or for entering the military or naval service of the United States of America in time of war, or (b) employment in an office to which the employee had been elected by popular vote at a regular State election, or (c) involuntary severance of employment; but the employee shall not be considered in covered employment during any period of such interruption.

Section 4. Pension Benefits:--The pension shall be payable monthly. and, subject to the limitation that the monthly pension payment shall not exceed One Hundred and Fifty Dollars ($150.00) nor be less than Fifty Dollars ($50.00), the monthly pension payment shall be one-seventieth of the monthly retiring base salary multiplied by the number of years (taken to the nearest twelfth part of a year) which the employee shall have served in covered employment during the period that ends on the date of retirement and that includes no interruption from continuous covered employment except allowable interruptions aggregating not over five years.

In the case of an employee who shall have been continuously in covered employment during the sixty consecutive months ending on the date of retirement, the "monthly retiring base salary" shall be the salary for covered employment paid to the employee during such sixty months divided by sixty. For the purpose of this Act, a vacation, such as, but not limited to, that allowed an employee of a school system, shall not be considered an interruption from continuous covered employment. In the case of an employee whose covered employment during such sixty months shall have been interrupted by an allowable interruption, the "monthly retiring base salary" shall be the salary for covered employment paid to the employee during the last sixty months of covered employment prior to the date of retirement divided by sixty.

The pension under this Act to employees of the Board of Public Education in Wilmington shall be in addition to any pension payable under the present contributory pension plan of said Board.

School teachers who attain the mandatory age of retirement may be retained in active duty at the option of the Superintendent of Schools or principal of a school until the end of the then current semester.

Section 4A. Disability Pension:--An employee who shall become disabled while in covered employment and after having served in covered employment for at least twenty-five years during the period that ends on the inception of such disability and that includes no interruptions from continuous covered employment, except allowable interruptions aggregating not over five years, so as to be prevented by such disability from performing his or her active duties, may be retired on a disability pension.

Such disabled employee shall be kept on the active salary payroll during the remainder of the calendar month in which such disability shall begin and for the next ensuing three calendar months. At the end of such third calendar month, such disabled employee shall be retired and shall receive a pension calculated in accordance with Section 4. hereof and payable during the subsequent uninterrupted continuance of such disability until the date when such disabled employee would otherwise become eligible for retirement on pension in accordance with Section 2. hereof; provided, however, that in the event the retired employee while so disabled shall engage in any gainful occupation or business, then such disability pension shall be reduced by the excess, if any, of the compensation or profit earned from such occupation or business over one-half of the salary last received by such employee for active service in covered employment. If such disability shall continue until the date when such disabled employee would otherwise become eligible for retirement on pension in accordance with Section 2. hereof, then the disability pension shall cease but such disabled employee shall simultaneously enter upon the pension provided by Section 2 hereof.

Decision as to whether such disability exists or continues shall be by majority vote of the Disability Commission, consisting of the State Treasurer, Chairman, who shall, however, have no vote, the Superintendent of the Delaware State Hospital, who shall represent the State, a person, either medical or lay, appointed by the Governor to represent the public to serve during all or part of the term of the Governor, as the Governor May select, and a physician selected by the disabled employee to serve only when the Commission is considering the case of such employee. The Disability Commission shall, at least once a year or oftener at its discretion while the retired employee is receiving the disability pension, require such retired employee to furnish satisfactory proof of the continuance of such disability. Whenever in the opinion of the Disability Commission it shall appear that such employee has recovered to the extent of being able to perform his or her active duties, the Disability Commission shall require such employee to resume active service, whereupon no further monthly pension payments shall be made under this Section.

Members of the Disability Commission shall serve on the Commission without compensation but shall be compensated by a fee of Ten Dollars ($10.00) for attendance at each meeting of the Commission plus expenses actually incurred in attending meetings of the Commission. The State Treasurer is authorized to pay such charges together with the cost of any examinations or investigations which the State Treasurer, with the advice of the State and public members of the Commission, may deem it proper to make concerning the existence or continued existence of such a disability. An appropriation of One Thousand Dollars ($1,000.00) a year is hereby made to cover such compensation and expenses and costs. Such appropriation shall be deemed a Supplementary Appropriation Bill and shall be paid out by the State Treasurer upon warrants approved by two members of the Disability Commission.

The period for which the disability pension shall have been paid shall be considered an allowable interruption which is allowable in addition to the allowable interruptions aggregating not over five years, in determining subsequent eligibility for retirement on pension under Section 2. hereof.

Section 5. Pension Budget; Payments;--Each department or agency of the State that shall come within the provisions of this Act shall use a salary payroll record to include the employees eligible for pension, and at the time of drafting the budget it shall include, in addition to an amount for active employees' salaries, the names, addresses and amounts for those employees who are carried on the pension roll, plus the names and addresses of the employees who might become eligible for retirement during the period covered in the budget. The payment of the monthly pension benefits of this Act shall be made in the same way and by the same proceedings as salaries are paid and so provided for the active employees, except only as herein otherwise provided.

Section 6. Application for Pension; Certified Report; Records:--A covered employee may request retirement with pension in accordance with this Act by making written request therefor to the head of the department or agency by which he or she is employed at least thirty days prior to the date of retirement; or the head of a department or agency may, in accordance with this Act, retire a covered employee of his department or agency by giving written notice to the employee at least thirty days prior to the date of retirement. In either event, the head of the department or agency shall prepare a statement in such form as may be prescribed by the State Treasurer to enable him to comply with this Section; the head of the department or agency shall, at least fifteen days prior to the date of retirement, give a certified copy of such statement to the State Treasurer, who shall finally decide whether the employee is entitled to the pension benefits and the amount thereof, except only in the case of a controversy, provision for which is in this Act provided. A copy of such statement shall also be given to the employee at least fifteen days prior to the date of retirement.

All records of whatever kind or character received or to be received by the State Treasurer on pension cases shall be kept by him as all other official records of his office are preserved.

Section 7. Arbitration Committee; Hearings; Notice; Oaths:--For the purpose of settling any controversy that may arise out of the administration of this Act, there is hereby created an Arbitration Committee consisting of the Governor, or his appointee, the State Treasurer, and the head of the department or agency of which the individual is an employee, who shall hear and adjudicate such controversy at a time and place convenient to all the parties, after due notice in writing has been given to all interested parties at least ten days before date of hearing, and who shall have the power to administer oaths and to do such acts and make such reasonable rules in the premises as such committee may deem necessary to carry into effect the provisions of this Act. The written decision of any two members of the committee shall be final, and the members of the committee shall serve without pay.

Section 8. Notification; Resolution:--When the employee is not entitled to the pension benefits of this Act, the State Treasurer shall so advise him or her by letter, but if the employee is entitled to the pension benefits of this Act, the State Treasurer shall prepare and give to the employee, through his or her department or agency, an appropriate resolution in the following form:

RESOLUTION

Whereas, The retirement of ________ (name) ________ (address) an employee of the State of Delaware, from his duties as ___________ (title of duty) in the ________ (name of department or agency) presents a suitable opportunity for expressing the esteem in which we hold _______ (him or her) as a faithful and satisfactory public servant; therefore, be it

Resolved, That the State of Delaware expresses its warmest appreciation and thanks to __________ (name) for the able and loyal manner in which _____ (he or she) has uniformly performed __________ (his or her) public duties, and

Further Resolved, That this resolution be ___________ (his or her) evidence of a right to the pension provided by the "Delaware State Employees' Pension Act;" and

Be It Further Resolved, That the State Treasurer be hereby requested to sign this resolution and put the State seal upon it.

Section 9. Federal Benefits:--If any Federal law shall hereafter be passed providing for annuities, pensions, disability allowances, or other benefits, on account of the same service for which a pension is granted under this Act, then the benefits herein provided shall be reduced to the extent of any Federal benefits so granted.

Section 10. Beneficiaries of Pension Not to be Employed by State:--No person, while receiving a pension under this Act, shall be employed by the State of Delaware in any capacity excepting by gubernatorial appointment or election by popular vote at a regular State election; and during any such appointed or elected term, he or she shall not be entitled to a pension unless he or she serves the term of office without pay.

Section it Pension Benefits Free of Attachment; Assignment:--The pension benefits herein mentioned shall not be subject to attachment or execution, and shall be payable only to the beneficiary designated, and shall not be subject to assignment or transfer.

Section 12. Beginning with the first of July A. D. 1947 and continuing during the fiscal years ending June 30, 1948, and June 30, 1949, all state employees in covered employment shall contribute one per cent (1%) of their salaries or wages received from the state into an Employees' Contribution Fund to be set up in the office of the State Treasurer of the State of Delaware. For the two fiscal years beginning July 1, 1949 and ending June 30, 1951, all state employees in covered employment shall contribute two per cent (2%) of their salaries or wages received from the state into the said Fund. For the biennium beginning July 1, 1951, and ending June 30, 1953, all such employees shall contribute three per cent (3%) of their salaries or wages received from the state into the Employees' Contribution Fund.

The funds so set up by the State Treasurer shall be used to pay pension benefits herein provided. Only those new employees who enter the employment of the state under age forty-five for females and under age fifty for males shall contribute to the Pension Fund and participate in the pension benefits herein provided. The percentage of salaries or wages to be contributed by employees under this Act shall be withheld by the State Treasurer from the salaries or wages of such employees. In the event of termination of employment, including termination by death, the employee shall have the right to withdraw all of his contributions together with two per cent (2%) interest upon the same. In the event of death before the deceased employee has become eligible to receive pension benefits, his or her contribution, together with the interest thereon, shall be payable to his legal representative. In the case of a retired employee, the excess of his contributions together with interest over monthly benefit payments received to the date of death shall be paid in one lump sum at death to the employee's legal representative.

Section 13. The provisions of this Act with respect to the retirement of covered employees after having served the State for thirty-five years and with respect to employees' contributions shall not become effective until the first clay of July A. D. 1947.

Approved April 24, 1945.