CHAPTER 261

AN ACT TO AMEND TITLE 9, DELAWARE CODE, BY ADDING A CHAPTER ESTABLISHING PENSIONS FOR SUSSEX COUNTY EMPLOYEES.

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

Section 1. Title 9, Delaware Code, is amended by adding thereto a new chapter as follows:

CHAPTER 64. PENSIONS FOR SUSSEX COUNTY

EMPLOYEES

§ 6401. Short Title

This chapter shall be known as the "Sussex County Employees Retirement Act".

§ 6402. Term "covered employee' defined

An employee shall be considered in "covered employment" within the meaning of this chapter while the employee receives a regular salary or wages wholly or in part directly or indirectly from the County Treasurer of Sussex County, or the State Treasurer of the State of Delaware; provided, however, that an employee shall not be considered in covered employment if he is a part-time or seasonal employee who is not regularly employed for more than 120 working days in any one calendar year, unless the said employee is an elected. official.

§ 6403. Eligibility for retirement benefits

(a) An employee who is in covered employment on the date of retirement and who shall have served in covered employment for at least 15 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 ten years, shall be considered eligible for retirement benefits within the meaning of this chapter, except as otherwise provided.

(b) Allowable interruptions from continuous covered employment shall be interruptions arising from (1) leaves of absence granted to employees; or (2) for entering the armed services of the United States of America as provided in section 6404 of this title; or (3) involuntary severance of employment not due to any fault or neglect on the part of such employee; or (4) 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.

(c) No employee shall be eligible for retirement benefits under the provisions of this chapter who is covered or potentially covered by any other State, County or municipal pension plan or statute in effect on or after June 18, 1957, except as otherwise provided.

§ 6404. Service in armed forces of the United States or in National Guard

(a) In the case of an employee of Sussex County who is called to the service of, or voluntarily enters the armed forces of the United States of America, or the National Guard of this State when in continuous active service, the Board or Department employing such employee, shall grant to such employee a leave of absence which shall cover the entire period of service, not exceeding four years, and upon the completion of such leave of absence and service, shall reinstate the employee in the position which he held at the time that his leave of absence was granted.

(b) If any employee of Sussex County who shall have entered the armed services, as provided in subsection (a) of this section, shall have been employed in any Board or Department of Sussex County which shall come under any pension plan enacted or to be enacted by the Legislature of this State, the time spent by such employee in the armed services shall accrue to his benefit in establishing his right to a pension.

(c) The provisions of this section, in regard to time spent in the armed services of the United States of America in time of war, shall be deemed an exception to the provisions of section 6403 of this title.

§ 6405. Retirement age

(a) Every covered employee within the meaning of this chapter, now or hereafter employed, may be retired after such employee shall have served in covered employment for 25 years, or on or after attaining the age of 60 years in the case of a female employee, or the age of 65 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 chapter, subject to such qualifications and reservations as are contained in this chapter; provided that 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 65 years for female employees or 75 years of age for male employees.

(b) Nothing in this chapter shall be construed to make mandatory the retirement of any employee who is not in "covered employment" as such term is defined in section 6402 of this title or who is ineligible to receive a pension because he has not worked the required number of years, except as is specifically authorized in this chapter to the contrary.

§ 6406. Retirement pension benefits

(a) Any pension payable under this chapter shall be subject to the limitation that the monthly pension payment shall not exceed $200 nor be less than $85 per month.

(b) The monthly pension payment shall be one-fiftieth of the monthly retiring base pay, multiplied by the number of years (a fractional period of 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 ten years.

Where a person eligible for a pension under this chapter shall have served in covered employment for at least 25 years and shall have served for at least 15 years thereof without interruption up to the date of retirement, his monthly pension payment shall be one-sixtieth of the monthly retiring base pay multiplied by the total number of years served regardless of interruption.

(c) In the case of an employee who shall have been continuously in covered employment during the 60 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 Levy Court of Sussex County, during such 60 months (excluding any pay received for overtime or special work), divided by 60.

§ 6407. Disability pension benefits

(a) An employee who shall become disabled while in covered employment and after having served in covered employment for at least 15 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.

(b) 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.

(c) At the end of such third calendar month, such disabled employee shall be retired, and shall receive a pension calculated in accordance with section 6406 of this title 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 6405 of this title; provided, however, that if 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 6405 of this title, then the disability pension shall cease but such disabled employee shall simultaneously enter upon the pension provided by section 6406 of this title.

(d) The provisions relating to payment of disability pension as provided in this section shall not apply if the disabled employee receives compensation equal to or in excess of the benefits provided by this chapter pursuant to the provisions of the Delaware Workmen's Compensation Law, Title 19, Chapter 23.

If the amount of compensation received pursuant to the Delaware Workmen's Compensation Law by the disabled employee is less than the amount he would otherwise receive under the provisions of this section then an amount equal to the difference shall be paid to the employee as disability pension.

(e) Decision as to whether such disability exists or continues shall be by majority vote of the Arbitration Commission referred to in section 6412 of this title. 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 appears 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 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.

(f) 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 6405 of this title.

§ 6408. Submission of pension data to Levy Court for determination of amount required to be raised by taxation

(a) Each department or agency of Sussex County that shall come within the provisions of this chapter shall, not less than 30 days prior to the date when the County tax rate shall be fixed by the Levy Court of Sussex County 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 following fiscal year.

(b) At the time of the establishment of the tax rate, the Levy Court of Sussex County 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.

§ 6409. Pension benefits; time and manner of payment; list of pensioners

(a) The payment of the pension benefits under this chapter shall be made at the same time and in the same manner as salaries and wages are paid for active employees, except as otherwise provided in this chapter.

(b) The name and address of each employee receiving benefits under the provisions of this chapter, together with the amount of pension to be received at each payment by each such employee, shall be filed in the office of the Receiver of Taxes and County Treasurer.

§ 6410. Retirement of employee

(a) A covered employee may request retirement with pension in accordance with this chapter 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 30 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 chapter, retire a covered employee of his or their department or agency by giving written notice to the employee at least 30 days prior to the date of retirement.

(b) 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 Receiver of Taxes and County Treasurer to enable him to comply with the provisions of this chapter. The president, chairman or other principal person as such department or agency shall, at least 15 days prior to the date of retirement, give a certified copy of such statement to the Receiver of Taxes and County Treasurer. A copy of such statement shall also be given to the employee at least 15 days prior to the date of retirement.

§ 6411. Preservation of pension records by Receiver of Taxes and County Treasurer

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

§ 6412. Arbitration Commission

For the purpose of settling any controversy that may arise out of the administration of this chapter, the Arbitration Commission for Sussex County is created. It shall consist of three persons, not more than two of whom shall be of the same political party, to be appointed by the Levy Court of Sussex County, for a term of four years. The Commission shall adjudicate such controversy at a time and place to be fixed by the Commission, after due notice in writing has been given to all interested parties at least 10 days prior to the date of hearing. The Commission may administer oaths and do such acts and make such rules in the premises as the Commission deems necessary to carry into effect the provisions of this chapter. 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 Levy Court of Sussex County shall provide for the payment of the necessary expenses of the Commission.

§ 6413. Notice to employee of qualification for pension; resolution of Levy Court

When the employee is not entitled to the pension benefits of this chapter, the Receiver of Taxes and County Treasurer shall so advise the employee by letter, but if the employee is entitled to the pension benefits of this chapter, the Receiver of Taxes and County Treasurer shall so advise the Levy Court of Sussex County, whereupon such Levy Court shall prepare, sign and seal, and deliver to the employee, an appropriate resolution in the following form:

RESOLUTION

WHEREAS, The retirement of

an employee of Sussex County, State of Delaware, from

duties as

in the presents a suitable opportunity

for expressing the esteem in which we hold

as a faithful and satisfactory public servant; therefore, BE IT RESOLVED, That the County of Sussex express its warmest

appreciation and thanks to

for the able and loyal manner in which

has uniformly performed

public duties and BE IT FURTHER RESOLVED, That this Resolution be evidence of a right to the pension provided by the Sussex County Pension Law.

(Signed)

President of the Levy Court of Sussex County, State of Delaware.

Member of the Levy Court of Sussex County, State of Delaware.

Member of the Levy Court of Sussex County, State of Delaware.

§ 6414. Effect of receipt of pension or other benefits under other law

If any Federal or other law in effect on June 18, 1957 or thereafter 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 chapter, then the benefits provided in this chapter 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 provided in this chapter, no payment shall be made under this chapter.

§ 6415. Restrictions upon other employment by pensioner

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

§ 6416. Exemption of pension benefits from taxation, attachment, etc.; assignability of benefits

The pension benefits mentioned in this Chapter 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.

Approved December 21, 1965.

Note: This act has been codified as Chapter 63, Title 7, Delaware Code.