CHAPTER 443

AN ACT TO ESTABLISH A MERIT SYSTEM OF PERSONNEL ADMINISTRATION FOR THE EMPLOYEES OF THE STATE.

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

Section 1. Title 29, Delaware Code, is amended by adding a new chapter to read :

CHAPTER 59. MERIT SYSTEM OF PERSONNEL

ADMINISTRATION

SUBCHAPTER I. DEFINITIONS AND EXCLUSIONS

§ 5901. Definitions

As used in this chapter, unless the context requires a different meaning —

(a) "Agency" means any agency, board, department, bureau, commission of this state which receives an appropriation under the general appropriation act of the General Assembly.

(b) "Classified service" or "state service" shall have the meaning as set forth in section 5903 of this title.

(c) "Commission" means the State Personnel Commission created by this chapter.

(d) "Commissioner" means a member of the Commission.

(e) "Director" means the Personnel Director appointed pursuant to this chapter.

§ 5902. General purpose

The general purpose of this chapter is to establish for the state a system of personnel administration based on merit principles and scientific methods governing the appointment, promotion, transfer, layoff, removal and discipline of employees of the state in the classified service.

§ 5903. Classified service and exemptions

Unless otherwise required by law, as used in this chapter, "classified service" or "State service" means all positions of State employment other than the following positions, which are excluded:

(1) Members of the General Assembly and others elected by popular vote, and persons appointed to fill vacancies in elective offices.

(2) Officers and employees of the Senate and House of Representatives of the General Assembly.

(3) Election officers.

(4) Heads of State Agencies, members of Boards and Commissions, and the chief administrator employed by each Board or Commission.

(5) One principal assistant or deputy and one private secretary for each head of a State Agency.

(6) Officers and employees in the Office of the Governor.

(7) Deputy Attorneys General, and State Detectives appointed by the State Attorney General.

(8) Physicians or lawyers acting primarily in a professional capacity and not in an administrative capacity, except those physicians or lawyers employed by the State on a full-time basis.

(9) Persons employed as consultants in a professional or scientific capacity to conduct a temporary and special inquiry, investigation, examination, or service on behalf of the General Assembly or a Committee thereof, or by authority of the Governor, or by authority of a head of a State Department, Agency, Board or Commission.

(10) Patient or inmate help in charitable, penal, correctional and other State institutions.

(0) Personnel in the military service of the State.

(1) All employees of each State school district or special school district and of the school district of the City of Wilmington; all employees of the State Board of Education; all employees of the State Board of Vocational Education and of the Educational Television Board; and all employees who teach in State institutions pursuant to unit allocations as set forth in section 1703 of title 14.

(2) All employees of the University of Delaware and of Delaware State College.

(3) Trustees of the University of Delaware and Delaware State College and Directors of the Farmers Bank of the State of Delaware.

(4) Persons engaged in public work conducted jointly with the Federal Government, with other States or their political subdivisions, or with political subdivisions in this State.

(5) All Judges or other members of the State judiciary; referees, jurors, and other persons appointed by the Judiciary; and all employees of the Courts of the State of Delaware including Justice of the Peace Courts.

(6) Temporary employees, employed for a period of time not to exceed 90 days, and students employed as part of an internship program.

(0) Members and employees of the Delaware State Police.

SUBCHAPTER II. COMMISSION AND DIRECTOR

§ 5906. State Personnel Commission; composition; appointment; term; vacancies; qualifications; removal

(a) The State Personnel Commission shall consist of 5 Commissioners, at least 2 of whom are registered members of each major political party. The Governor shall appoint the Commissioners for a term of 3 years, or until their successors are appointed and qualified. Appointments made upon the expiration of any Commissioner's term shall be for a period of 3 years from such expiration date. When vacancies occur, they shall be filled for the unexpired term. The Commissioners shall be appointed by and with the consent of a majority of the members elected to the Senate.

(b) Commissioners shall be persons of recognized character and ability with demonstrated interest in improving public administration. During the year preceding appointment, a Commissioner shall not have held political office or been an officer in a political organization, nor shall he hold or be a candidate for such positions during his term as a Commissioner.

(c) When appointed, Commissioners shall be citizens of the United States, qualified voters of the State, and residents of this State for at least 3 years immediately preceding their appointment. One member shall reside in the City of Wilmington; one shall reside in the remainder of New Castle County; one each shall reside in each of the other 2 counties of the State. The fifth member may reside anywhere in the State. The qualifications for Commissioners shall continue during their term of office.

(d) The Governor may remove a Commissioner for cause, only after the Commissioner has been given a copy of the charges against him and has been given opportunity to be heard publicly before the Governor. A copy of the charges and a transcript of the hearing shall be filed with the Secretary of State.

§ 5907. Duties of the Commission

In addition to the duties set forth elsewhere in this chapter, the Commission shall:

(1) have broad policy-making responsibility for improving personnel standards and administration in the State service in accordance with merit principles;

(2) foster interest throughout the State in such improvement of the State service;

(3) investigate personnel administration in the State service;

(4) make an annual report to the Governor, and special reports and recommendations upon his request; and

(5) recommend to the Governor such changes as may be desirable in the pension system for employees in the classified service.

§ 5908. Organization of the Commission; meetings; compensation

(a) The Commission shall meet once each calendar month of the year at Dover and at such other times and places within the State as may be designated at the call of the Governor or any Commissioner. Every year the Commissioners shall elect one of their members as Chairman. The Chairman shall cause reasonable notice to be given to each Commissioner and the Director of Personnel of the time and place of each meeting. Three members shall constitute a quorum for the transaction of business at any meeting.

(b) Each Commissioner shall be paid $25 for each day devoted to Commission business, but not more than $450 in any 1 year. Members shall be entitled to reimbursement for travel and other expenditures made necessary by their official duties.

§ 5909. Limitation on expenditures

The General Assembly recognizes that appropriations may be needed if the Commission is to carry out effectively the provisions of this chapter. However, no change in pay rates shall take effect, and no other expenses shall be incurred, until an appropriation therefor shall have been made by the General Assembly.

§ 5910. Personnel Director

(a) The Commissioners shall, with the approval of the Governor, appoint a Director who shall be required to have an earned college degree and to have at least 5 years experience in the field of personnel administration, except that graduate study in a related field may be substituted for such experience up to a maximum of 3 years. He shall receive such compensation as may be authorized by the Commission within the appropriation of the General Assembly.

(b) The Director shall serve at the pleasure of the Governor and may be removed by him at any time.

(c) The Director, as administrative head of the Commission, shall supervise its administrative and technical activities. With approval of the Commission, he shall develop and put into effect policies and procedures for merit system administration.

§ 5911. Duties of Director

In addition to the duties imposed upon him elsewhere in this chapter it shall be the Director's duty to:

(1) attend all Commission meetings and to act as its Secretary and keep minutes of its proceedings ;

(2) establish and maintain a roster of all employees in the classified service as defined in section 5903 of this title, setting forth pertinent data as to each employee, including the class title of the position held; salary or pay; and any change in class title, pay or status;

(3) appoint, with approval of the Commission, those Commission employees, including special deputies and assistants, as are needed to carry out effectively the provisions of this chapter, all such employees to be subject to the rules provided for in this chapter;

(4) encourage the development of more effective personnel administration within the departments and agencies in the State service, and to make available for this purpose the assistance and facilities of the Commission;

(5) investigate from time to time the operation and effect of this chapter and of the rules made thereunder and to report his findings and recommendations to the Commission; and

(6) perform any other lawful acts which he may consider necessary or desirable to carry out this chapter and the rules adopted thereunder.

§ 5912. Deputy Directors

The Director, with the approval of the Commission, may designate one or more Commission employees to act as his deputy or deputies. At least 1 such deputy shall assist the Director with administration of the merit system insofar as it applies to the Federally-aided agencies referred to in Section 5952 of this title. In case of the Director's absence or inability to act, his powers and duties shall devolve upon the deputy designated for such purpose.

SUBCHAPTER III. RULES

§ 5914. Rules; hearing; adoption

The Director shall prepare and submit to the Commission proposed rules covering the classified service. The rules shall be reviewed by the Commission at a public hearing held following public notice. The rules, as they may be amended by the Commission, shall become law upon the completion of the public hearing, except that any rules relating to a pay plan for employees in the classified service shall become law only after being approved as set forth herein. After public notice and public hearing, the Commission, on its own motion, may establish, adopt and amend such rules.

§ 5915. Classification; uniformity; appeal of classification

The rules shall provide for the preparation, maintenance and revision of a position classification plan for all positions in the classified service, based upon similarity of duties performed and responsibilities assumed, so that uniform qualifications and pay ranges shall apply to all positions in the same class. After approval of such classifications by the Commission, the Director shall place every employee in the classified service within the appropriate classification. Any classification may be appealed to the Commission in writing by any employee or agency within such reasonable time as may be prescribed in the regulations.

§ 5916. Uniform pay plan

The rules shall provide for a pay plan for all employees in the classified service, after consultation with State officers and after a public hearing held by the Commission. Such pay plan shall become effective only after it has been approved by the Governor after submission to him by the Commission and after adequate appropriations to put such plan into effect have been received. Amendments to the pay plan may be made in the same manner. Each employee shall be paid at a rate set forth in the pay plan for his position classification.

§ 5917. Competitive examinations

The rules shall provide for open competitive examinations to test the relative fitness of applicants for positions in the classified service. Such examinations shall be announced publicly at least 15 days prior to the date for filing applications therefor, and may be advertised through the press, radio and other media. In his discretion, the Director may continue to receive applications and examine candidates after the filing date in order to assure a sufficient number of eligible persons; and may add the names of successful candidates to existing eligible lists in accordance with their respective ratings. Examinations may be written or oral, or a combination of both, or they may be unassembled examinations, in which case the examining authority may evaluate specialized training and experience. Examinations shall be prepared by the Director of Personnel, after consultation with the appointing authority where appropriate.

§ 5918. Promotions

The rules shall provide for promotions, giving consideration to the applicant's qualifications, performance record, seniority, conduct, and where practicable, to the results of competitive examinations. Vacancies shall be filled by promotion whenever practicable and in the best interest of the classified service.

§ 5919. Eligibility lists

The rules shall provide for the establishment of eligible lists for appointment and promotion. Such lists shall include the names of successful candidates in the order of their relative performance in the particular examinations. Eligibility for appointment from any such list shall continue for not more than 3 years.

§ 5920. Rejection for unfitness

The rules shall provide for the rejection of candidates or eligibles who fail to comply with reasonable requirements of the Director in regard to such factors as age, physical condition, training and experience; or who have been guilty of infamous or disgraceful conduct, are addicted to alcohol or to narcotics, or have attempted any deception or fraud in connection with an examination.

§ 5921. Appointment of highest ranking candidates

The rules shall provide for the appointment of a person standing among the highest 5 or the highest 15%, whichever is the greater number, on the appropriate eligible list, to fill a vacancy.

§ 5922. Probation

(a) The rules shall provide for a period of probation not to exceed 12 months before appointment or promotion is made complete, and during which period a probationer may be discharged or reduced in class or rank. Probationary employees shall be entitled to receive an appropriate performance report or reports during the probationary period, providing warning of any poor performance.

(b) The appointing authority shall notify the Director in writing, within 10 days prior to the expiration of an employee's probationary period, whether the services of a probationary employee have been satisfactory or unsatisfactory. If the probationary employee's services were unsatisfactory, he shall be dropped from the payroll, except that, in case of promotion, the probationer shall be reduced in class or rank with approval of the Director. Any such employee shall be replaced on the appropriate eligible list. If the probationary employee's services were satisfactory, or if the appointing authority shall fail to furnish the required notice to the Director prior to the expiration of the probationary period, the appointment shall be deemed permanent. The determination of the appointing authority shall be final and conclusive.

§ 5923. Emergency employment

The rules shall provide for emergency employment for not over 30 days with or without examination, with the consent of the Director.

§ 5924. Provisional employment

The rules shall provide for provisional employment without competitive examination when no appropriate eligible list is available. No provisional employment shall continue longer than 6 months, nor shall successive provisional appointments be allowed, except during the first year after the effective date of this chapter where needed for the orderly conduct of the State's business.

§ 5925. Transfers

The rules shall provide for transfer from a position in one department or agency to a similar position in another department or agency involving similar qualifications, duties, responsibilities and pay range.

§ 5926. Reinstatement

The rules shall provide for reinstatement within 2 years (but only with approval of the Director) of persons who resign in good standing or who are laid off without fault or delinquency on their part.

§ 5927. Performance records

The rules shall provide for the keeping of performance records on all employees in the classified service, which records may be considered in determining salary increases or decreases, promotion, layoffs and reinstatement, demotions, discharges and transfers.

§ 5928. Layoffs; transfers; reductions

The rules shall provide for layoffs, transfers or reduction in rank because of lack of funds or work, or abolition of a position, or material change in duties or organization, and for reemployment of employees so laid off, giving consideration in each such case to performance record and seniority in service.

§ 5929. Fines

The rules shall provide for imposition, as a disciplinary measure, of a fine of not more than 10 days' pay or suspension from the service without pay for not longer than 30 days.

§ 5930. Discharge; reduction in rank or grade

The rules shall provide for discharge or reduction in rank or grade for cause after the probationary period for appointment or promotion is completed. The person to be discharged or reduced in rank for cause shall have the right of appeal as set forth in this chapter.

§ 5931. Grievances; work schedules

The rules shall provide for the establishment of a plan for resolving employee grievances and complaints, and for hours of work, holidays, and attendance regulations; and for annual, sick and special leaves of absence, with or without pay, or at reduced pay.

§ 5932. Working conditions

The rules shall provide for the development and operation of programs to improve work effectiveness and morale of employees in the State service, including training, safety, health, welfare, counseling, recreation, and employee relations.

§ 5933. Veterans preference

The rules shall provide for preference to be given to veterans of the armed forces of the United States who served during wartime. Such rules shall provide that:

(1) preference shall be confined to original entrance and be not applied to promotion within the classified service or to retention in case of reduction in force;

(2) preference shall be granted only in the form of credits to be added to earned ratings in examinations, with disabled veterans receiving no more than 10 points and other veterans no more than 5 points;

(3) a definition of a disabled veteran shall be set forth in the rules;

(4) all veterans shall be required to obtain a passing examination mark before receiving preference credits; and

(5) employees in the classified service who, while in good standing, leave or have left the State service to engage in military service, shall be given credit for seniority purposes for the time served in the armed forces not to exceed 3 years.

§ 5934 Miscellaneous

The rules shall provide for such rules and administrative regulations not inconsistent with this chapter, as may be proper and necessary for its enforcement.

§ 5935. Preference for residents

The rules shall provide for preference to be given residents of this state in any case where 2 or more equally qualified persons are concerned.

SUBCHAPTER IV. ENFORCEMENT AND APPEALS

§ 5941. Duties of State officers and employees

All officers and employees of the State shall comply with and aid in all proper ways in carrying out the provisions of this chapter and the rules, regulations and orders thereunder. All officers and employees shall furnish any records or information which the Director or the Commission may request for any purpose of this chapter. The Director, with the approval of the Commission, may institute and maintain any action or proceeding at law or in equity that he considers necessary or appropriate to secure compliance with this chapter and the rules, regulations and orders thereunder.

§ 5942. Certification of payrolls; audits

(a) No State disbursing or auditing officer shall make or approve or take any part in making or approving any payment for personal service to any person holding a position in the classified service unless the payroll voucher or account bears the certification of the appropriate State officer, that the persons named therein are being paid in accordance with the provisions of this chapter and the rules, regulations and orders thereunder.

(b) The Director shall conduct such post-audits of State payrolls and such other investigations as he may deem necessary to assure himself that the provisions of this chapter and the rules, regulations and orders thereunder are being observed. Any violations shall be called immediately to the attention of the appropriate Agency head and to the Budget Director, Auditor of Accounts and State Treasurer. Thereafter no payment shall be made to any employee whose salary rate has been questioned until the rate has been adjusted to the satisfaction of the Director.

§ 5943. Enforcement of this chapter by legal action

(a) Any person may maintain a suit to restrain a disbursing officer from making any payment in contravention of any provision of this chapter, rule, regulation or order thereunder. Any sum paid contrary to any provisions of this chapter or of any rule, regulation or order thereunder may be recovered in an action maintained by any citizen, from any officer who made, approved or authorized such payment or who signed or countersigned a voucher, payroll, check or warrant for such payment or from the sureties on the official bond of any such officer. All moneys recovered in such action shall be paid to the State Treasury and credited to the account from which original payments had been drawn.

() Any person appointed or employed in contravention of any provision of this chapter or of any rule, regulation or order thereunder who performs services for which he is not paid, may maintain an action against the officer or officers who purported to so appoint or employ him to recover the agreed pay for such services, or the reasonable value thereof if no pay was agreed upon. No officer shall be reimbursed by the State at any time for any sum paid to such persons on account of such service.

(a) If the Director wrongfully withholds certification of the payroll account of any employee, such employee may main-thin a proceeding to compel the Director to certify such payroll account.

§ 5944. Oaths, testimony and the production of records

The Commission, each Commissioner and the Director shall have power to administer oaths, subpoena witnesses and compel the production of books and papers relevant to any investigation or hearing authorized by this chapter. Any person who shall fail to appear in response to a subpoena or to answer any question or produce any books or papers relevant to any such investigation or hearing may be compelled to do so by order of the Superior Court.

§ 5945. Refusal of employee to testify

If any employee in the State service shall willfully refuse or fail to appear before any court or judge, any legislative committee or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared, shall refuse to testify or answer any question relating to the affairs or government of the State or the conduct of any State officer or employee on the ground that his testimony or answers would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any matter about which he may be asked to testify at any such hearing or inquiry, he shall forfeit his office or position and shall not be eligible thereafter for appointment to any position in the State service.

§ 5946. Prohibited acts

(a) No person shall make any false statement, certificate, mark, rating or report with regard to any hearing, test, certification or appointment made under any provision of this chapter or in any manner commit or attempt to commit any fraud preventing the impartial execution of this chapter and the rules thereunder.

(b) No person shall, directly or indirectly, give, render, pay, offer, solicit or accept any money, service or other valuable consideration for or on account of any appointment, proposed appointment, promotion or proposed promotion to, or any advantage in, a position in the classified service.

(c) No employee of the Commission, examiner, or other person shall defeat, deceive or obstruct any person in his right to examination, eligibility, certification or appointment under this chapter, or furnish to any person any special or secret information for the purpose of affecting the rights or prospects of any person with respect to employment in the classified service.

§ 5947. Penalties; jurisdiction

(a) Any person who wilfully violates any provision of this chapter or of the rules shall be guilty of a misdemeanor, and shall upon conviction be punished therefor as the court may direct.

() Any person who is convicted of a misdemeanor under this law shall, for a period of 5 years, be ineligible for appointment to, or employment in, a position in the State service, and if he is an officer or employee of the State, shall forfeit his office or position.

(a) The Superior Court shall have exclusive jurisdiction of violations of the provisions of this chapter.

§ 5948. Records of Commission

The Commission's records, except such records as the rules may properly require to be held confidential for reasons of public policy, shall be public records and shall be open to public inspection subject to reasonable regulations as to the time and manner of inspection as may be prescribed by the Director. Reports concerning character, personal history and health of employees or applicants for employment shall be held confidential except when a majority of the Commission shall find it to be in the public interest that the same shall be open to public inspection.

§ 5949. Appeals

(a) An employee in the classified service who has completed his probationary period of service, may not, except for

cause, be dismissed or demoted or suspended for more than 30 days in any 1 year. Within 30 days after any such dismissal, demotion or suspension, an employee may appeal to the Commission for review thereof. Upon such review, both the appealing employee and the appointing authority whose action is reviewed shall have the right to be heard publicly and to present evidentiary facts. At the hearing, technical rules of evidence shall not apply.

(b) If the Commission finds that the action complained of was taken by the appointing authority for any political, religious or racial reason, or is not supported by the facts as having been for cause, the employee shall be reinstated to his former position or a position of like status and pay, without loss of pay for the period of suspension.

(c) If the Commission upholds the decision of the appointing authority, the employee shall have a right of appeal to the Superior Court on the question of whether the appointing authority acted in accordance with law. The burden of proof of any such appeal to the Commission or Superior Court is on the employee. If the Commission finds against the appointing authority, the appointing authority shall have a right of appeal to the Superior Court on the question of whether the appointing authority acted in accordance with law. The burden of proof of any such appeal to the Superior Court is on the appointing authority. All appeals to the Superior Court shall be by the filing of a notice of appeal with the Court within 30 days of the employee being notified of the final action of the Commission.

SUBCHAPTER V. MISCELLANEOUS

§ 5951. Services to political subdivisions and excluded agencies

Subject to approval of the Commission, which shall take into account the primary responsibility of the Director towards the classified service, the Director may enter into agreements with any agency, excluded from this chapter, or with any municipality or other political subdivision of this State to furnish services and facilities of the Commission to such agency, municipality or political subdivision in the administration of its personnel according to merit principles. Any such agreement shall provide for the reimbursement to the State of the reasonable cost of the services and facilities furnished, as determined by the Director. All excluded agencies and all municipalities and political subdivisions of the State are authorized to enter into such agreements.

§ 5952. Federal Merit System standards

Notwithstanding any other provisions of this chapter, the Commission and each officer and employee of the State of Delaware are authorized and directed to take such action with respect to matters involving personnel as may be necessary to insure the continued eligibility of this State for grants-in-aid under any Federal law or program.

§ 5953. Discrimination prohibited

No person shall be appointed or promoted to, or demoted or dismissed from, any position in the classified service, or be in any way favored or discriminated against with respect to employment in the classified service because of his political or religious opinions or affiliations or race.

§ 5954. Political activity; penalty

(a) No person shall use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in appointment to a position in the classified service, or an increase in pay or other advantage in employment in any such position, for the purpose of influencing the vote or political action of any person, or for any consideration.

(b) No employee in the classified service shall engage in any political activity or solicit any political contribution, assessment or subscription during his hours of employment or while engaged in the business of the State.

(c) No person shall induce, directly or indirectly, any employee in the classified service to make a contribution, assessment or subscription to a political party under the representation, actual or implied, that such assessment, subscription or contribution will have any effect on the employee's employment with the State.

(d) Any officer or employee in the classified service who violates any of the provisions of this section shall forfeit his office or position, and for 1 year shall be ineligible for any office or position in the State service.

§ 5955. Separability

If any provision of this chapter or of any rule, regulation or order thereunder or the application of such provision to any person or circumstance shall be held invalid, the remainder of this chapter and the application of such provision of this chapter or of such rule, regulations or order to persons or circumstances other than those as to which it is held invalid shall not be affected thereby.

Section 2. Employees holding positions in the classified service for 6 months or more immediately prior to the date on which the rules covering the classified service become effective as provided in Section 5914 of section 1 of this Act shall be continued in their respective positions without further examination, until separated from their positions as provided by law. Those holding their positions less than 6 months immediately prior to the aforementioned date shall also be continued in their respective positions provided they pass a qualifying test prescribed by the Director within 3 months after the aforementioned date. Those who shall have failed to qualify as provided herein shall be dismissed from their positions within 30 days after establishment of an eligible list for their respective positions. Nothing herein shall preclude the reclassification or reallocation, as provided by this act, of any position.

Section 3. Persons who are employed by agencies of this State administering Federal grant-in-aid programs and subject to Federal merit system standards, shall continue to be governed by existing regulations and the Delaware Merit System of Personnel Administration until plans and rules established under this Act supersede the provisions of such regulations. Those employees who hold appointments in their present positions in accordance with an existing merit system of personnel administration previously established and accepted as meeting Federal standards shall be continued in their respective positions and shall retain all their rights in connection therewith in accordance with such standards until separated from their positions as provided by law. All funds, records, fixtures, equipment and properties of the Delaware Merit System of Personnel Administration shall be transferred to the Personnel Commission and be available solely for the purpose and in accordance with the requirements of the Federal agencies from whose grants-in-aid they were provided.

Section 4. Of the original appointments made to the State Personnel Commission created by this Act by the Governor, one Commissioner shall be appointed for a term of 3 years, two shall be appointed for a term of 2 years and two shall be appointed for a term of 1 year.

Approved July 1, 1966.