CHAPTER 237

WILMINGTON - PROVIDING PENSION BENEFITS TO EMPLOYEES

AN ACT PROVIDING FOR THE PAYMENT OF PENSION BENEFITS TO CERTAIN EMPLOYEES OF THE MAYOR AND COUNCIL OF WILMINGTON, 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 LIABILITY FOR STATE AND LOCAL INCOME TAXES AND NON-ASSIGNABLE, 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 (two-thirds of all the members elected to each Branch concurring therein):

Section 1. This Act shall be known as the "CITY OF WILMINGTON EMPLOYEES' RETIREMENT ACT".

Section 2. Every covered employee of The Mayor and Council of Wilmington within the meaning of this Act, 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 the case of a female employee, or the age of sixty-five years in the 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, 1948, any covered employee may continue active work at his option, irrespective of his age, provided he continues mentally and physically fit to properly discharge his duties, but on and after said date a covered employee may continue active work at the option of the department or agency by which he or she is employed up to the age of sixty-five years for female employees or seventy years for male employees, 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" within the meaning of this Act while the employee receives a regular salary or wages wholly or in part directly or indirectly from the Treasurer of the City of Wilmington or any department or agency thereof except the Board of Public Education in Wilmington, or from the County Treasurer of New Castle County; provided, however, that an employee shall not be considered in covered employment if he is a part-time or seasonable employee who is not regularly employed for more than 120 working days in any one calendar year, or if his only employment is as a member of the following boards and commissions: Board of Directors of the Street and Sewer Department; Board of Harbor Commissioners; Board of Health; Board of Park Commissioners; Board of Public Utility Commissioners; Board of Water Commissioners; Department of Public Safety; Public Building Commission; Department of Elections; Sinking Fund Commissioners; Zoning Commission.

Section 4. 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 who has served in covered employment for at least five years immediately preceding the date of retirement, and whose service includes no interruption from continuous covered employment, except allowable interruptions aggregating not more than five years, shall be considered eligible for retirement benefits within the meaning of this Act, except as otherwise provided. Allowable interruptions from continuous covered employment shall be interruptions arising from (a) leaves of absence granted to employees; or (b) for entering the Armed Services of the United States of America in time of war; or (c) involuntary severance of employment not due to any fault or neglect on the part of such employee; or (d) voluntary severance of employment for a period not to exceed one year; but the employee shall not be considered in covered employment during any period of such interruption. The usual vacation allowed any employee of any department or agency shall not be considered an interruption from continuous employment.

Section 5. Pension Benefits:--Any pension payable under this Act shall be 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 pay multiplied by the number of years (a fractional period of six months or more shall be counted as one year and less than six months shall not be counted) which the employee shall have served in covered employment during the period that ends on the date of retirement and includes no interruptions from continuous covered employment except allowable interruptions aggregating not more than 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 pay" shall be the regular pay for covered employment paid to the employee by the City of Wilmington, or by the Levy Court of New Castle County, during such sixty months (excluding any pay received for over-time or special work), divided by sixty.

Section 6. 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 more than 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 payroll during the remainder of the calendar month in which such disability shall begin and for the next ensuing three 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 5 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 or wages 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 5 hereof.

The provisions relating to payment of disability pension as provided in the foregoing Section shall not apply if the disabled employee receives compensation equal to or in excess of the benefits provided by this Act pursuant to the provisions of the Delaware Workmen's Compensation Law. If the amount of compensation received pursuant to said Delaware Workmen's Compensation Law by any disabled employee is less than the amount he would receive under the provisions of the foregoing Section then an amount equal to the difference shall be paid to said employee as disability pension.

Decision as to whether such disability exists or continues shall be by majority vote of the Arbitration Commission hereinafter created. The Arbitration Commission shall, at least once a year or oftener, at its discretion, while the disabled employee is receiving disability pension, require such disabled employee to furnish satisfactory proof of the continuance of such disability. Whenever, in the opinion of the Arbitration Commission, it shall appear that such employee has recovered to the extent of being able to perform his or her active duties, the Arbitration Commission shall so notify the employee and shall also notify the Department or agency wherein such employee was employed; whereupon the said employee shall be required to *resume active service and no further pension payments shall be made under the provisions of this Section for such disability.

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 7. Each department or agency of the City of Wilmington that shall come within the provisions of this Act, shall, not less than thirty days prior to the date when the City budget shall be fixed by "The Council" of the Mayor and Council of Wilmington in each year, submit a salary or wage payroll record to include employees eligible for pension and which shall contain the names, addresses and amounts for those employees who are carried on the pension rolls, plus the names and addresses and amounts to be paid employees of such department or agency who might become eligible for retirement during the period covered in such budget, and at the time of the drafting of the City budget "The Council" of The Mayor and Council of Wilmington shall include, in addition to an amount for active employees' salaries or wages, the amounts for those employees who are carried on the pension roll, plus the amount for those employees who might become eligible for retirement during the period covered in such budget. The payment of the pension benefits of this Act shall be made at the same time and by the same proceedings as salaries and wages are paid for active employees except as herein otherwise provided. The name and address of each employee receiving benefits under the provisions of this Act, together with the amount of pension to be received at each payment by each such employee, shall be filed in the office of the City Treasurer.

Section 8. A covered employee may request retirement with pension in accordance with this Act by making a written request therefor to the President or Chairman or other principal person of the department or agency by which he or she is employed, at least thirty days prior to the date of retirement; or the President or Chairman or other principal person of the department or agency may, with the approval of a majority of the governing board of such department or agency, and in accordance with this Act, retire a covered employee of his or their department or agency by giving written notice to the employee at least thirty days prior to the date of retirement. In either event, the President or Chairman or other principal person of the department or agency shall prepare a statement in such form as may be prescribed by the City Treasurer to enable him to comply with the provisions of this Act; the President, Chairman or other principal person of such department or agency. shall, at least fifteen days prior to the date of retirement, give a certified copy of such statement to the City Treasurer; 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 City Treasurer on pension cases shall be kept by him as all other official records of his office are preserved.

Section 9. For the purpose of settling any controversy that may arise out of the administration of this Act, there is hereby created an Arbitration Commission consisting of three persons, not more than two of whom shall be of the same political party, to be appointed by the Mayor, subject to confirmation by "The Council", for a term of four years. The said Commission shall adjudicate such controversy at a time and place to be fixed by said Commission, after due notice in writing has been given to all interested parties at least ten days prior to the date of hearing; the Commission shall have power to administer oaths and to do such acts and make such rules in the premises as such Commission may deem necessary to carry into effect the provisions of this Act. The written concurring decision of any two members of the Commission shall be final. The members of the Commission shall serve without compensation, but "The Council" shall provide for the payment of the necessary expenses of the Commission.

Section 10. When the employee is not entitled to the pension benefits of this Act, the City Treasurer shall so advise him or her by letter, but if the employee is entitled to the pension benefits of this Act, the City Treasurer shall so advise the Mayor, whereupon the Mayor shall prepare, sign and seal, and deliver to the employee, an appropriate resolution in the following form:

RESOLUTION

WHEREAS, The retirement of __________ (Name) __________ (Address) an employee of the City of Wilmington, State of Delaware, from ________ (his or her) duties as _________ (Title of Duty) in the _________________ (Name of Dept. or Agency), presents a suitable opportunity for expressing the esteem in which we hold _________ (Name) as a faithful and satisfactory public servant; therefore, BE IT RESOLVED, That the City of Wilmington 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 BE IT FURTHER RESOLVED, That this Resolution be ____________ (his or her) evidence of a right to the pension provided by the "CITY OF WILMINGTON EMPLOYEES' PENSION ACT".

(SEAL)

(Signed) ____________________

Mayor of the City of Wilmington,

State of Delaware

Section 11. If any Federal or other law now or hereafter enacted shall provide for annuities, pension, disability allowances, social security, or other benefits, on account of or arising from the same service for which a pension is granted under the provisions of this Act, then the benefits herein provided shall be reduced to the extent of any such benefits so granted, or if such benefits shall be equal to or greater than the benefits herein provided, no payment shall be made under this Act.

Section 12. No person, while receiving a pension under this Act, shall be employed by the City of Wilmington, or by the Levy Court of New Castle County, or any department or agency of the City of Wilmington, or the Levy Court of New Castle County, in any capacity excepting election by popular vote at an election; and during such elected term, he or she shall not be entitled to a pension unless he or she serves such term of office without pay.

Section 13. The pension benefits herein mentioned shall not be subject to attachment or execution, nor to any State or local income tax, and shall be payable only to the beneficiary designated, and shall not be subject to assignment or transfer.

Section 14. No employee shall be considered eligible for retirement benefits under the provisions of this Act who is covered or potentially covered by any other State, County or Municipal pension plan or statute now or hereafter in effect, except as otherwise provided.

Section 15. The monthly retirement and disability benefits for such employees as shall regularly receive part of their compensation from the City of Wilmington and New Castle County, or in alternate periods shall receive regular compensation from the City of Wilmington or New Castle County, shall be one-half of the monthly retiring base pay, divided by seventy, multiplied by the number of years which such employee shall have served in "covered employment"; in case the total combined monthly retirement or disability benefits calculated, under the provisions of this Act and the Act for the retirement of employees of New Castle County, be less than Fifty Dollars ($50.00), or more than One Hundred and Fifty Dollars ($150.00) then in lieu of such payment as herein calculated, the said employee shall receive under this Act not less than Twenty-five Dollars ($25.00) and not more than Seventy-five Dollars ($75.00) as a monthly retirement or disability benefit.

The provisions of this Section shall be deemed to be an exception to Section 14 insofar as it applies to receive retirement and disability benefits from New Castle County by employees who are alternately or jointly employed by the City of Wilmington and New Castle County, in "covered employment", and who receive regular salary or wages alternately or jointly from the Treasurer of the City of Wilmington and/or the Treasurer of New Castle County, and such employees shall receive retirement and disability benefits in accordance with the provisions of this Section.

Section 16. On and after the effective date of this Act only those new employees who enter the employment of the City of Wilmington under the age of forty-five years shall participate in the pension benefits herein provided; provided, however, the foregoing shall not apply to the employment of persons who are absent from covered employment because of any allowable interruptions from covered employment aggregating not over five years.

Section 17. This Act shall become effective on the first day of July, A. D., 1947.

Approved April 9, 1947.