CHAPTER 297

PROVIDING FOR WILMINGTON PARK POLICE PENSION

AN ACT PROVIDING FOR A PARK POLICE PENSION FUND FOR MEMBERS OF THE PARK POLICE OF THE CITY OF WILMINGTON.

Be it enacted by the General Assembly of the State of Delaware (two-thirds of all the Members of each House concurring therein):

Section 1. The provisions of this Act shall apply to any person who shall be a member of the Park Police of the Board of Park Commissioners of The Mayor and Council of Wilmington at the time of its enactment or who shall become such a member thereafter. This Act shall also apply to those members of said Park Police who have retired as of the date of its enactment as employees of The Mayor and Council of Wilmington, in so far as prospective benefits are concerned, but shall not apply to said retired members so as to confer retroactive benefits to said members.

Section 2. When used in this Act the word or words defined in this section shall have the meaning herein assigned to them, as follows :

A. The word "member" means any person employed as a Park Policeman, regardless of capacity, by the Board of Park Commissioners of The Mayor and Council of Wilmington, to whom this Act applies.

B. The words "years of service" means the number of years, including fractional parts thereof to the nearest one-twelfth (1/12), of continuous employment as such a member, provided, however, that where continuous employment is interrupted by a leave of absence granted by the Board of Park Commissioners, the period of continuous employment prior to such leave of absence shall be included in "years of service", and provided that in the discretion of the Board the period of such leave of absence may likewise be included in "years of service".

C. The words "average retiring salary" means an amount equal to the aggregate of the full monthly salary for the last sixty (60) months of service prior to retirement without taking into consideration any period which a leave of absence may have been granted, divided by sixty (60).

D. The word "Board" means the Board of Park Commissioners or a majority of them.

Section 3. Any member may be retired by the Board, in their absolute discretion and without hearing or other trial, after the member attains the age of fifty (50) years. Any member who shall have completed twenty (20) years of service, and who shall apply for retirement under the provisions of this Act, shall be retired by the Board. Any such retired member shall be entitled during life to a service pension payable monthly as hereinafter provided. Such service pension shall be an amount equal to two per cent (2%) of the average retiring salary multiplied by the number of years of service up to and including twenty (20) years of service, plus one per cent (1%) of such average retiring salary multiplied by the number of years of service in excess of twenty (20) years.

Section 4. In case of the disability of a member which permanently prevents such member from performing his or her active duties, such member may be retired by the Board in their absolute discretion.

A. In the event that such disability can be shown to the satisfaction of the Board to have been acquired in the prosecution of his or her official duties, such member, as long as such member shall live and continue to be so disabled shall receive a pension under this Act. The amount of such pension during the first year of such retirement shall be the full monthly salary at the rate of pay last received by such member for active service, and thereafter shall be either half the monthly salary at the rate of pay last received by such member for active service, or the amount of service pension which such retired member would have been entitled to if retiring on service pension at the time of retirement, whichever is higher, plus, after the first year of said retirement, Ten Dollars ($10.00) per

month for each living dependent child born or conceived before such retirement and currently under the age of eighteen (18) years. If a member so retired because of a disability so acquired shall die during the continuance of such disability, leaving a widow who had been continuously married to and living with such member from before retirement until his death, and/or a living dependent child or children born or conceived at the time of such retirement and currently under the age of eighteen (18) years, such pension shall be continued as hereinafter provided in this paragraph of Section 4. If such member shall leave such a widow alone surviving him, the pension shall be continued payable to such widow until her death or remarriage. If such member shall leave a widow and such child or children, or such child or children alone surviving, the pension shall be continued at the same rate payable to such widow or to the guardian of such child or children until the death or remarriage of such widow or until such youngest living child reaches the age of eighteen (18) years, whichever event happens last. If such member shall so die without leaving such a widow or such child or children surviving but leaving a dependent parent or parents for whom such member was the principal means of support, a pension equal to one-third (1/3) of the pension hereinabove provided for the disabled member shall be continued to each such parent so surviving during his or her lifetime or until his or her dependency shall cease.

B. In case of disability to perform his or her active duties, which disability cannot be shown to the satisfaction of the Board to have been acquired in the prosecution of his or her official duties, such member so retired, provided he or she has performed ten (10) years of service, shall be entitled to a pension, payable monthly, as long as such retired member lives and continues disabled. Such pension shall be an amount equal to two per cent (2%) of the average retiring salary of such member multiplied by the number of years of service up to and including twenty (20) years of service, plus one per cent (1%) of such average retiring salary multiplied by the number of years of such service in excess of twenty (20) years.

C. Notwithstanding the provisions of this Act or of any general or special law to the contrary, any condition of impairment of health caused by tuberculosis or heart disease, resulting

to total or partial disability of any member who successfully passes a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be presumed to have suffered or incurred such ailments in the line of duty, unless the contrary be shown by competent evidence. Any disability as specified in this paragraph which removes the member from active service, shall entitle the member to the benefits of this Act regardless of the period of service at the time the disability occurs.

No member shall be retired under the provisions of Section 4 of this Act until he or she shall have been found to be permanently disabled to perform his or her active duties by a majority of three (3) physicians, one appointed by the member, one appointed by the Board and the third selected by the first two, and until such board of three (3) physicians shall have certified that such disability has been shown to have been acquired in the prosecution of the official duties of such member or that such disability has not been shown to have been acquired in the prosecution of his or her official duties ; provided, however, the requirement of action by physicians may be dispensed with by the consent in writing of such member to such retirement and the amount of pension applicable hereunder. The findings of a majority of the three (3) physicians in respect to any question before them shall be final. Compensation to said three (3) physicians shall be paid by the City of Wilmington as a part of the cost of the pensions and benefits provided by this Act.

The Board may at any time and from time to time but not after such member attains the age of fifty (50) years, require a retired member who has been retired under Section 4 of this Act, to be re-examined by a physician, and if on such re-examination such retired member is reported capable of performing regular duty, such retired member may be required by the Board to return to active duty in the same rank and grade in which he or she was serving at the time of retirement, whereupon pension hereunder shall cease.

Section 5. In the event of the death of a member which can be shown to the satisfaction of the Board to have occurred in the prosecution of his or her official duties, a pension shall be paid from the date of such death as hereinafter provided.

The amount of such pension shall be the last full monthly salary at the rate of pay last received by such member for active service for one year from his or her death and thereafter shall be either half the monthly salary at the rate of pay last received by such member for active service or, after such first year, the amount of service pension that said member would have been entitled to if retiring on service pension at the date of his or her death, whichever is higher, plus Ten Dollars ($10.00) per month for each living dependent child of such member who was currently under the age of eighteen (18) years. Such pension shall be paid in monthly payments to the widow of such member living with such member at his death until her death or remarriage. Upon the death or remarriage of such widow, or upon the death of such member if no such widow shall survive, such pension shall be paid to the guardian of such living dependent child or children of such member currently under the age of eighteen years. If such deceased member shall not leave such a widow or such dependent child or children surviving him or her, but shall leave a dependent parent or parents surviving, one-third (1/3) of the pension which would have been paid to such a surviving widow, had a widow survived, shall be paid to each such surviving parent during his or her lifetime or until such dependency ceases.

In the event of the death of a member occurring after ten (10) years of service as a member, which death cannot be shown to have occurred in the prosecution of his or her, official duties, one year's salary at the last current rate of pay of such member shall be paid in a lump sum to the widow, guardian of a surviving child or children under the age of eighteen (18), or dependent parent or parents for whom such member was the principal means of support, in the order named.

In the event of the death of a retired member who has been retired either on service pension provided in Section 3 or on disability pension provided under Section 4, occurring before such retired member shall have received monthly pension payments aggregating such one year's salary, the excess of such one year's salary over the monthly pension payments so received shall be paid in one lump sum to the person or persons designated in the last preceding paragraph in the order named.

No determination shall be made by the Board that the death of a member has or has not shown to have occurred in the prosecution of his or her official duties unless and until all of the persons immediately entitled to any benefits under the provisions of this Act shall have been afforded a hearing and an opportunity to produce testimony in this respect. The decision of the Board in this respect after such hearing, shall be final.

Section 6. Any pension payable under the provisions of this Act shall be reduced or suspended as follows:

A. No pension shall be payable to a retired member during the time he or she is employed at a job, the salary of which is derived in whole or in part from public taxation.

B. No pension shall be paid to any eligible widow, whether with or without an eligible child or children, during the time she is employed at a job, the salary of which is derived in whole or in part from public taxation.

C. Any pension payable to anyone entitled thereto shall be reduced or entirely suspended by the amount which and while the recipient or person or persons for whose benefit it is payable is entitled to any pension, grant, aid, payment or contribution by the way of pension, old-age retirement benefit, unemployment compensation benefit, social security benefit, industrial accident benefit, or other benefit ; provided that such reduction or suspension shall not reduce the aggregate of the pension payable hereunder plus the amounts of other such benefits payable to such recipient or for the benefit of such person or persons below one hundred and fifty per cent (150%) of the benefits otherwise payable by way of pension hereunder; provided, further, that these provisions or suspensions may at any time be amended or the percentage herein established may be hereafter increased or decreased.

Section 7. Any person who is a member to which this Act applies may voluntarily accept the provisions of this Act, and upon such acceptance in writing, in form prescribed by the Board, said member and his or her dependents shall cease to be entitled to any benefits whatsoever under the existing pen-

sion plans applicable to said member, and shall forfeit all right, title and interest now or hereafter existing in said existing pension funds. This Act shall not apply to members who fail to sign such acceptance in writing, but such members shall continue to be entitled to their rights in existing pension plans.

No member who comes under the provisions of this Act by the voluntary acceptance as above provided shall be entitled to a pension, upon retirement, greater than fifty per cent (50%) of the last current rate of monthly salary of such retiring member unless prior to such retirement such member has served as a member for at least five (5) years after the voluntary acceptance of the provisions of this Act.

Any member voluntarily accepting the provisions of this Act as above provided shall receive credit for the prior continuous years of service as a member.

Section 8. Every person who shall hereafter become a member and every member voluntarily accepting the provisions of this Act shall be given a certificate setting forth that he or she is entitled to the benefits of this Act and giving the date when he or she became a member. Said certificate shall be signed by the member and by a majority of the Board. Said certificate shall be deposited with the City Treasurer and shall be cancelled upon the member ceasing to be a member prior to his or her retirement.

Section 9. The Board shall from time to time certify to the City Treasurer the name and address of each person entitled to receive payment of benefits under this Act, the amount of such payments, and the name of the member because of whose services such payments are due. The City Treasurer shall make such payments in accordance with the certification of the Board; provided, however, that no such payments shall be made by the City Treasurer unless there is on deposit with him an uncancelled certificate showing the eligibility for the benefits of this Act of the person because of whose services such payments are due.

Section 10. The right of any person to any payment under this Act shall not be transferable or assignable at law or in equity, and none of the moneys paid or payable, or rights existing under this Act shall be subject to execution, levy attachment, garnishment or other legal process, or to the operation of any bankruptcy or insolvency laws.

Section 11.

A. The City Treasurer of the City of Wilmington be and he is hereby authorized to withhold from the salary of each member who voluntarily accepts the provisions of this Act as hereinabove provided, a sum equal to two per cent (2%) of said salary.

. Said contributions from members shall be retained by the City Treasurer of the City of Wilmington in a trust fund to be known as the "Park Police Pension Fund", which shall be used and distributed for the purposes of effectuating the provisions of this Act. The Council of The Mayor and Council of Wilmington shall annually appropriate and credit to the Park Police Pension Fund such sum as may be required to meet all charges on said Park Police Pension Fund not covered by the annual income on said Fund and the other revenues coming into said Fund.

A. Said Treasurer shall execute a bond for the faithful performance of his duties with respect to this Fund, in such sum and form and with such surety as will be satisfactory to the Board. The cost of said bond shall be defrayed from the proceeds of said Fund.

B. Upon the receipt of written instructions from the Board, the City Treasurer may invest any part of said Park Police Pension Fund that the Board deems proper, in national, state, county or municipal bonds, and the said Treasurer shall make a report to the said Board and to The Council of The Mayor and Council of Wilmington of the condition of said Fund on the first day of April of each year. The fiscal year of the Park Police Pension Fund shall begin on the first day of July of each year and end on the thirtieth day of June of the following year.

Approved June 14, 1955.