CHAPTER 39

AN ACT PERTAINING TO THE STATE HIGHWAY DEPARTMENT AND PROVIDING FOR ITS REORGANIZATION, COMPOSITION, MEMBERSHIP, COMMITTEES, QUORUMS, OATHS OF MEMBERS, AND COMPENSATION TO MEMBERS; FOR LIABILITY INSURANCE FOR DEPARTMENT EMPLOYEES; FOR APPOINTMENT AND POWERS OF NOTARIES PUBLIC; FOR THE TRANSFER OF FUNDS FOR EMERGENCY MAINTENANCE; FOR RATIFICATION OF THE ACTS OF THE STATE HIGHWAY DEPARTMENT CREATED BY TITLE 17, DELAWARE CODE, SECTION 111; FOR AMENDMENT IN THE MANNER OF SELECTING A CHAIRMAN OF THE DEPARTMENT; FOR CERTAIN CHANGES IN THE DEPARTMENT'S POWERS AND DUTIES; FOR ABOLITION OF THE OFFICES OF CHIEF ENGINEER AND SECRETARY; FOR CREATION OF THE OFFICES OF DIRECTOR OF OPERATIONS AND CONTROLLER; FOR AMENDMENTS WITH RESPECT TO DETERMINATION AS TO HIGHWAY IMPROVEMENTS, IMPROVEMENT OF ROADS LEADING TO INSTITUTIONS; COMPETITIVE BIDDING, PREPARATION OF PLANS AND SPECIFICATIONS, ADVERTISEMENT FOR BIDS, OPENING OF BIDS, AND AWARDING OF CONTRACTS; AND FOR ESTABLISHMENT OF A MERIT SYSTEM OF EMPLOYMENT AS TO CERTAIN EMPLOYEES OF THE DEPARTMENT.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Subchapter II of Title 17 of the Delaware Code, as amended, including all of the paragraphs and sections thereof, is hereby repealed. The State Highway Department and the offices of members of the State Highway Department created by Section 111 of Title 17 of the Delaware Code are hereby abolished, except that all of the present members of the Department shall continue in such offices until all of the members of the new department, created in Section 3 hereof, shall have been appointed and qualified.

Section 2. All acts and actions of the State Highway Department created by § 111 of Title 17 of the Delaware Code and all acts and actions of the members of such Highway Department, as recorded or reflected in the minutes or other records of the Department, are hereby ratified, confirmed, approved and declared to be valid and effective acts and actions of the Department and the members thereof, except any such acts or actions as may have been invalid prior to the effective date of this Section.

Section 3. Subchapter II of Title 17 of the Delaware Code, having been repealed by Section 1 hereof, the following new sections are substituted therefor as a new subchapter II of Title 17:

SUBCHAPTER II. ORGANIZATION AND ADMINISTRATION

§ 111. Composition; appointment; term; qualifications; vacancy

(a) The Department shall consist of eleven members.

(b) The members of the Department shall be appointed by the Governor, by and with the consent of a majority of the members elected to the Senate. When this subchapter becomes law, the Governor shall appoint three of the members for terms of one year each, three of the members for terms of two years each, and four of the members for terms of three years each. Upon the expiration of each stated term, the Governor shall thereafter appoint successors to the offices for terms of three years each, commencing, in each case, from the date of the expiration of the term of his predecessor. The eleventh member of the Department shall serve at the pleasure of the Governor and shall be the Chairman of the Department. He may be removed at any time by the Governor and shall serve until he is removed by the Governor.

(c) During their respective terms of office not less than three members shall reside in each county, and there shall be at least one member from each of the two major political parties residing in each county. No more than six members shall belong to the same political party.

(d) Each member of the Department shall be, when appointed, a citizen of the United States, a qualified voter of the State, and a resident of the State for at least three years preceding the date of his appointment. A member of the Department shall not be, while a member of the Department, a member of any state, county or district political committee.

(e) No appointment of a member to succeed a member whose term of office has expired shall be complete and effective unless or until the nominee has been confirmed by the Senate.

(f) In case of a vacancy in the Department for any reason the Governor shall, by and with the consent of a majority of the members elected to the Senate, fill such vacancy for the unexpired term by selecting a properly qualified person.

§ 112. Oath

Before entering upon the duties of the office, each member of the Department shall take and subscribe the oath or affirmation prescribed in the Constitution. Such oath or affirmation shall become one of the records of the Department.

§ 113. Quorum; Committees

(a) A majority of the members of the Department shall constitute a quorum except as otherwise provided in this title. A majority of the members present at any meeting constituting a quorum shall be sufficient for any action by the Department.

§ 114. Compensation and expenses of members

The members of the Department shall receive no compensation for their services, but shall receive their actual expenses incurred while engaged in the affairs of the Department.

§ 115. Director of Operations; appointment; qualifications; bond

(a) The Department shall employ a Director of Operations for such periods of time as the Department shall determine, which may be for terms up to five years each. The Director may be discharged by the Department for cause at any time.

(b) The Director shall be at the time of his employment not less than thirty years of age; he shall have had at least ten years' experience as a managing executive or administrator in government or private industry, with major responsibilities for, and proven abilities in, the kinds of work for which the Director is responsible under the provisions hereof.

(c) The Director, before entering upon the duties of his office, shall give such bond as may be required by the Department for the faithful performance of his duties and shall take and subscribe an oath or affirmation like that required of a member of the Department.

(d) The total compensation to be paid to the Director, for services performed for the Department and for any other public agency or office, shall be determined by the Department. Where the total compensation so determined covers services to be performed for the department and for another public agency or office, the department and such other public agency or office shall each pay one-half of the total compensation.

§ 116. Director of Operations; powers and duties; Chief Engineer.

(a) The Director of Operations shall be responsible to the Department for the administration of all of its affairs except the operation of the State Police and Detectives, the Motor Vehicle Division and the accounting and fiscal affairs of the Department. The Director shall carry out and cause to be performed all general and specific duties within his jurisdiction after the policy with respect thereto has been formulated by the Department.

(b) The Director shall, immediately upon assuming the duties of his office and from time to time, recommend to the Department a program for the improvement of state highways and for the inclusion of additional roads or portions of roads in the state highway system; the probable cost of the construction or reconstruction of such roads or portions of roads, and the roads or portions of roads which should first be improved and the probable amount of construction which could be undertaken.

(c) The Director shall employ, promote and discharge all persons hired by the Department, including a Chief Engineer, for the performance of work for which the Director is responsible. All such employment, promotion and discharge shall comply with the laws applicable to the Department.

Such Chief Engineer shall be not less than thirty years of age; he shall be a civil engineer registered or eligible for registration as such in Delaware and shall have been in active practice of his profession for at least ten years; he shall have had responsible charge of road engineering work for at least five years; and he shall be qualified to design as well as direct road engineering work. Graduation from a school of engineering of recognized reputation shall be considered as equivalent to two years of active practice. The total compensation to be paid to the chief engineer and the allocation thereof between the department and any other public agency or office for services performed for the department and any other public agency shall be determined by the department.

§ 117. Controller; appointment; powers and duties; qualifications; bond

(a) The Department shall employ a Controller who shall be directly responsible to the Department for all of its accounting and internal auditing and for the fiscal control of its commitments, receipts and disbursements.

(b) The Controller shall be appointed by the Department within the merit system of employment herein provided. Until such system is in effect in the Department, the Controller shall be employed by the Department for such periods of time as it shall determine. The Controller may be discharged by the Department for cause at any time.

(c) The Controller shall be at the time of his employment not less than thirty years of age and shall be a graduate of a recognized school of business administration majoring in accounting or, in lieu thereof, shall possess the equivalent through other acceptable channels. He shall have had not less than ten years' experience in general accounting, obtained in either the fields of public accounting, governmental accounting, private business accounting or a combination thereof. He shall have experience and ability in preparation and interpretation of financial statements and reports, including budgetary and fund statements and reports.

(d) The Controller, before entering upon the duties of his office, shall give such bond as may be required by the Department for the faithful performance of his duties and shall take and subscribe an oath or affirmation like that required of a member of the Department.

(e) The total compensation to be paid to the Controller for services performed for the Department and for other public agency or office shall be fixed by the Department. Where the total compensation, so determined covers services to be performed for the department and for another public agency or office the department and such other public agency or office shall each pay one-half of total compensation.

(f) The Controller shall employ, promote and discharge all persons hired by the Department for the performance of work for which the Controller is responsible. All such employment, promotion and discharge shall comply with the laws applicable to the Department.

§ 118. Liability insurance for Department employees

The Department shall enter into a contract with a reliable insurance company or companies doing business in this State, to insure the employees of the Department against injury or death incurred while performing their duties as employees of the Department. The Department shall be the sole judge of the kind of insurance and the amount thereof which will best execute such purpose.

§ 119. Appointment and powers of notaries public

In addition to the notaries public now provided by law in the several counties, the Governor shall appoint four employees of the Department, one residing in New Castle County, one residing in Kent County, and two residing in Sussex County, notaries public, to hold office not exceeding two years. Such notaries public may not exercise their office, or take affidavits or acknowledgments except on documents and papers for the benefit of the Department, and for which they shall make no charge. Whenever any such person appointed notary public ceases to be an employee of the Department, his authority as such notary public shall cease, and thereupon the Governor may appoint another employee of the Department a notary public in his place.

Section 4. § 131 of Title 17 of the Delaware Code is hereby amended by adding thereto a new paragraph reading as follows:

The general jurisdiction conferred upon the Department by this section shall be exercised by it by the establishment and supervision of any and all policies which may be necessary or appropriate to implement such jurisdiction.

Section 5. § 132 (c) (1) of Title 17 of the Delaware Code is hereby amended to read as follows:

(1) Determine upon and lay out, within the recommendations of the Director of Operations, a system of State Highways;

Section 6. § 132 of Title 17 of the Delaware Code is hereby amended by adding thereto a new paragraph reading as follows:

(e) The general powers and duties conferred upon the Department by this section shall be exercised by it by the establishment and supervision of any and all policies pursuant to which such powers and duties shall be carried out. Such policies shall be binding upon the Director of Operations, the Controller and all other persons employed by the Department. All such policies pertaining to powers and duties concerning accounting, a system of accounting, internal audit and fiscal control of the Department's receipts and disbursements shall be carried out by the Controller. All such policies pertaining to other powers and duties shall be carried out by the Director of Operations.

Section 7. § 133 of Title 17 of the Delaware Code is hereby amended to read as follows:

§ 133. Determination as to highway improvements and additions

The Department shall consider the recommendations of the Director of Operations and from such recommendations determine what roads or portions of roads, if any, shall be improved and what roads or portions of roads shall be added to the State highway system.

Section 8. § 136 of Title 17 of the Delaware Code is hereby amended to read as follows:

§ 136. Improvements of roads leading to institutions

The Department may, upon the recommendation of the Director of Operations, widen, straighten, grade, reconstruct, otherwise improve and maintain any road, lane or entrance leading from any public road to any institution which is owned or controlled in whole or in part by the State. The Department shall have the same rights, powers and privileges for the purpose of performing and carrying out the duty hereby imposed as it has for the purpose of constructing State highways in general.

Section 9. § 151 of Title 17 of the Delaware Code is hereby amended to read as follows:

§ 151. Competitive bidding; when required; power to act without bids

(a) All highway maintenance or construction materials furnished to and all labor done for the Department in excess of the probable cost of $500 except labor in connection with the maintenance of State highways and employees directly under the Director of Operations or the Controller, and except labor and material used in the grading and repairing of roads in the State where such grading or repairing is done solely by the regularly employed workmen of the Department, shall be supplied or done under contract made after competitive bidding as provided in this subchapter.

(b) Whenever there is an unusual emergency which in the joint opinion of the Department (at least two-thirds of the members concurring), and the Director of Operations requires immediate attention to save any State highway or other property from damage, the Department may employ labor and purchase material to prevent such damage without competitive bids.

Section 10. § 152 of Title 17 of the Delaware Code is hereby amended to read as follows:

§ 152. Preparation of plans and specifications; advertisement for bids

(a) When the Department proposes to construct or reconstruct any State highway or purchase any material in excess of the amount specified in Section 151 of this title, the Director of Operations shall prepare plans and specifications for such work, or section thereof, as may be deemed most advantageous to the State, or description of such material as the case may be.

(b) The Director of Operations shall then advertise for sealed proposals to build or construct the road or section thereof or for such material. The advertisement for such bids shall be published at least once a week for two consecutive weeks in a newspaper of general circulation throughout the State and at least once a week for two consecutive weeks in a newspaper published in each county of the State; such advertisement shall be sufficiently full to indicate with reasonable accuracy the character, quantity and location of the work to be done, or the character and quantity of material to be furnished, when work shall commence, and when it shall be completed, or the materials to be furnished, and the manner and time of payment for the work to be done, or the material to be furnished, and the time and place of the opening of proposals and the conditions to be complied with in submitting proposals.

Section 11. § 154 of Title 17 of the Delaware Code is hereby amended to read as follows:

§ 154. Opening of bids; award of contract; right to reject bids

The proposals shall be publicly opened at the time and place specified in the advertisement, and the contract shall be awarded within 20 days by the Department to the lowest responsible bidder, unless in the opinion of all the members of the Department and the Director of Operations, the interest of the State shall be better served by the awarding of the contract to some other bidder, which may then be done, provided the Department shall set down in its minutes the reason or reasons for granting the contract to the person other than the lowest responsible bidder. If two or more responsible bidders shall bid an equal amount, and such amount shall be the lowest bid, the Department may award the contract to any one of them. The Department may reject all bids.

Section 12. § 403 (a) of Title 17 of the Delaware Code is hereby amended by deleting the last two sentences thereof and inserting in lieu thereof the following:

The Controller of the Department shall be the Secretary of the Division, provided, however, that said Controller may appoint a deputy to act in his stead. The Director of Operations of the Department shall appoint the Chief Engineer of the Department to be the Chief Engineer of the Division and the Director shall appoint such other deputies as may be necessary for the operation of the Division. The total compensation of such persons shall be determined by the Department and shall be paid by the Department and the division in such proportions as the department shall determine.

Section 13. § 132 (c) (6) of Title 17 of the Delaware Code is hereby amended to read as follows:

The Department is authorized to employ and discharge professional or technical experts, surveyors, agents, assistants, clerks, employees and laborers, skilled and unskilled, and also such advisers and consultants as may be required to accomplish the purposes of this chapter. All such persons employed to perform work for which the Director of Operations is responsible shall be employed and discharged by the Director. All such persons employed to perform work for which the Controller is responsible shall be employed and discharged by the Controller. General and special counsel for the Department shall be employed by, and shall serve at the pleasure of the Department.

Approved May 4, 1961.