CHAPTER 514

AN ACT TO AMEND TITLE 29, DELAWARE CODE, BY CREATING A NEW CHAPTER TO BE DESIGNATED AS CHAPTER 84 RELATING TO THE ESTABLISHMENT OF A DEPARTMENT OF HIGHWAYS AND TRANSPORTATION, DEFINING ITS ORGANIZATION, POWERS, DUTIES AND FUNCTIONS AND PROVIDING A SUPPLEMENTARY APPROPRIATION TO THE GOVERNOR TO IMPLEMENT THE PROVISIONS OF THIS ACT.

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

Section 1. Title 29, Delaware Code, is hereby amended by adding a new Chapter thereto to be designated as Chapter 84 to read as follows:

CHAPTER 84. DEPARTMENT OF HIGHWAYS

AND TRANSPORTATION

§ 8401. Establishment of Department of Highways and Transportation

A department of Highways and Transportation is hereby established.

§ 8402. Definitions

As used in this Chapter, "corridor route" means any existing or proposed road in an urban or rural area which is classified as part of the "principal arterial highway system" as defined in the National Highway Functional Classification Studies on record with the Department, and which serves traffic corridor movements of substantial statewide or interstate travel, and as to which the concept of service to abutting land is subordinate to the provisions of travel service to major traffic movements.

§ 8403. Secretary; Division Directors; Acting Secretary; Appointment

(a) The administrator and head of the Department shall be the Secretary of the Department of Highways and Transportation, who shall be a person qualified by training and experience to perform the duties of his office and preference shall be given to a resident of this State provided that he is acceptable and equally qualified. The Secretary shall be appointed by the Governor, with the advice and consent of the Senate, and shall serve at the pleasure of the Governor. He shall be paid an annual salary not in excess of $34,000.00.

(b) In the event the position of Secretary is vacant, the Governor, by appointment, shall have the power to fill the position or positions of division director as are vacant. Directors so appointed shall serve at the pleasure of the Governor and upon the position of Secretary being filled such directors may be removed by the Secretary with the written approval of the Governor.

(c) In the event of death, resignation, temporary incapacity or removal of the Secretary and prior to the appointment of his successor, the Governor may appoint the director of any division of the Department to serve as Acting Secretary. The Secretary may, during his absence from the State, appoint the director of any division of the Department to serve as Acting Secretary during such absence. In either case the Acting Secretary shall have all the powers and shall perform all the duties and functions of the Secretary during his absence or incapacity or until his successor is duly qualified and appointed.

§ 8404. Powers, duties and functions of the Secretary

The Secretary shall have the following powers, duties and functions:

(a) To supervise, direct and account for the administration and operation of the Department, its divisions, subdivisions, offices, functions and employees;

(b) To appoint, and fix the salary of, with the written approval of the Governor, the following division directors and office heads, who may be removed from office by the Secretary with the written approval of the Governor, and who shall have such powers, duties and functions in the administration and operation of the Department as may be assigned by the Secretary.

(1) A director of the Division of Highways, who shall be known as the Director of Highways, and who shall be qualified by training and experience to perform the duties of his office. The Director of Highways shall be, at the time of his appointment, a registered Professional Engineer in the State of Delaware or qualified for such registration.

(2) A Director of the Division of Transportation, who shall be known as the Director of Transportation, and who shall be qualified by training and experience to perform the duties of his office.

(3) An administrator and head of the Office of Planning, Research and Evaluation, who shall be known as the Chief of Planning, Research and Evaluation, and who shall be qualified by training and experience to perform the duties of his office. The Chief of Planning, Research and Evaluation shall be qualified by training and experience in highway planning, public transportation planning or related areas, and in the administration thereof.

(4) An administrator and head of the Office of Administration, who shall be known as the Chief of Administration, and who shall be qualified by training and experience to perform the duties of his office.

(c) To appoint such additional personnel as may be necessary for the administration and operation of the Department within such limitations as may be imposed by law.

(d) To establish an Office of Planning, Research and Evaluation in order to provide for and carry out the future comprehensive planning of the programs, policies and operation of the Department and the evaluation, necessary research, data collection and analysis of the programs, policies and operations of the Department.

To establish, consolidate or abolish such divisions, subdivisions and offices within the Department or transfer or combine the powers, duties and functions of the divisions and offices within the Department as the Secretary, with the written approval of the Governor, may deem necessary, provided that all powers, duties and functions required by law shall be provided for and maintained.

(e) To make and enter into any and all contracts, agreements or stipulations, and to retain, employ and contact for the services of private and public consultants, research and technical personnel and to procure by contract, consulting, research, technical and other services and facilities, whenever the same shall be deemed by the Secretary necessary or desirable in the performance of the functions of the Department and whenever funds shall be available for such purpose. All necessary legal services shall be provided pursuant to Title 29, Delaware Code, Chapter 25.

(g) To delegate any of his powers, duties or functions to a director of a division except his power to remove employees of the Department or to fix their compensation.

(h) To establish and to promulgate such rules and regulations governing the administration and operation of the Department as may be deemed necessary by him and which are not inconsistent with the laws of this State.

() To maintain such facilities throughout the State as may be required for the effective and efficient operation of the Department.

(a) To adopt an official seal or seals for the Department.

(b) In addition to his other powers, duties and functions, the Secretary shall serve as an ex-officio, non-voting member of the Public Service Commission.

§ 8405. Office of Administration

(a) The Office of Administration is hereby established having powers, duties and functions as follows:

(1) The Office of Administration shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in the Controller of the State Highway Department, as set forth in Title 17, Delaware Code, Chapter 1;

(2) In addition to the foregoing, the Office of Administration shall administer and coordinate the record keeping, transportation, fiscal affairs, data processing, statistics, accounting, personnel and such other general services for the Department as the Secretary may deem necessary for the proper, efficient and economical operation of the Department, and shall coordinate such general services and business administration with other departments, agencies and offices of the Government of this State.

§ 8406. Division of Highways

(a) The Division of Highways is hereby established having powers, duties and functions as follows:

(1) The Division of Highways shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in:

(i) The State Highway Department pursuant to the provisions of Title 17, Delaware Code, Chapters 1, 3, 4, 5, 6, 7, 9, 11, 12, 13, and 15, and Title 21, Delaware Code, Chapter 5; provided however, that the powers, duties and functions of the Controller of the State Highway Department, as prescribed in Title 17, Delaware Code, Chapter 1, shall be performed by the Office of Administration as set forth in §8405 above;

(ii) The State Highway Department pursuant to the provisions of Title 21, Delaware Code, §§4504 and 4505.

(2) The powers, duties, and functions assigned to and exercised by the State Highway Department in relation to the public lands of this State, as set forth in Chapter 45, Title 7, Delaware Code, are hereby removed and such powers, duties and functions are transferred to and shall be exercised by the Department of Natural Resources Environmental Control.

§ 8407. Council on Highways

(a) There is hereby established a Council on Highways.

(b) The Council on Highways shall serve in an advisory capacity, except as otherwise provided, to the Director of Highways, the Secretary of the Department and the Governor, and shall perform the following functions:

(1) Consider matters relating to highways and highway construction in the State and such other matters as may be referred to it by the Director of Highways, the Secretary of the Department or the Governor.

(2) Study, research, plan and advise on matters it deems appropriate to enable the Division to function in the best possible manner.

(3) Have final approval of and to adopt the six-year highway improvement program, which shall be submitted annually to the Council by the Department.

(4) Have final approval of and to adopt all corridor route projects in connection with new road alignments, which projects shall be submitted to the Council by the Department.

(c) If the Council, for any reason, shall fail to approve and to adopt in writing within a reasonable period of time after receipt of the programs or projects referred to in §8407 (b) (3) and (4), above, the Secretary of the Department may, with the approval of the Governor, upon 40 days prior written notice to the Chairman of the Council, give final approval to said programs or projects notwithstanding the absence of the Council's written comments.

(d) The Council on Highways, upon the effective date of the Chapter, shall be composed of the members of the State Highway Department whose terms, as of the effective date of this Chapter, have not expired. Each member shall serve as a member of the Council on Highways for the period of his unexpired term unless he vacates his position by resignation, death or incapacity. The Chairman of the State Highway Department shall serve on the Council for a term of three (3) years commencing upon the effective date of this Chapter. When the number of the members has been reduced to less than seven (7), by reason of expiration of terms, resignations, death or incapacity, the Governor shall appoint new members, who shall be confirmed by a majority of the members elected to the Senate. The terms of the new members shall be staggered, and one of the members shall be a resident of Sussex County, one of the members shall be a resident of Kent County, one of the members shall be a resident of Rural New Castle County, one of the members shall be a resident of the City of Wilmington, and three of the members shall serve at large. The first two (2) appointees shall serve for a term of one (1) year, the next two (2) appointees shall serve for a term of two (2) years, and the next three (3) appointees shall serve for a term of three (3) years. Thereafter, all new appointees shall serve for a term of three (3) years. When the number of members has been reduced to less than seven (7), the Council shall thereafter be composed of not more than seven (7) members.

(e) When the number of members of the Council has been reduced to less than seven (7), no more than four (4) of the newly appointed members shall be affiliated with the same political party. Any person who declines to announce his political affiliation shall also be eligible for appointment as a member of the Council.

(f) Members of the Council shall serve without compensation except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council.

(g) A Chairman of the Council shall be chosen by the members of the Council from among its members and shall serve in that capacity for a term of one (1) year and shall be eligible for reelection.

(h) After the Council has been reduced to seven (7), any appointment, pursuant to the provisions hereof, to replace a member whose position becomes vacant prior to the expiration of his term, shall be filled only for the remainder of that term.

§ 8408. Books; records; access; annual report

(a) The Council on Highways shall have access to all books, records, reports, and other documents relating to the Division of Highways unless otherwise prohibited by law.

(b) The Chairman of the Council on Highways shall make an annual report of the activities of said Council to the Secretary of the Department, the Governor and the General Assembly, and render such other reports as the Secretary, the Governor or the General Assembly may from time to time request or as may be required by law.

§ 8409. Division of Transportation

(a) The Division of Transportation is hereby established having powers, duties and functions as follows:

(1) The Division of Transportation shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in the Department of Transportation and the Secretary of Transportation pursuant to the provisions of Title 2, Delaware Code, Chapters 1, 7, 9, 15 and 16.

§ 8410. Exemptions

The following positions set forth in this Act shall be exempt from the provisions of Title 29, Delaware Code, Chapter 59;

(1) Secretary of Highways and Transportation

(2) Director of Highways

(3) Director of Transportation

(4) Chief of Planning, Research and Evaluation

(5) Chief of Administration

§ 8411. Functions prior to effective date of the chapter

The Department, through appropriate divisions, subdivisions, and offices, shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions vested by law in the State Highway Department and the Department of Transportation immediately prior to the effective date of this Chapter and which are not otherwise hereinabove specifically transferred to the Department by the provisions of this Chapter.

§ 8112. Appeals

Any and all rights of appeal now existing by law with respect to any act or acts constituting the exercise of any function or functions hereby transferred to the Department or to any divisions or subdivision thereof shall continue to exist with respect to such act or acts as hereafter performed by the Department or by the division, subdivision or office to which such function is hereby transferred, and each such appeal shall be perfected in the manner heretofore provided by law.

§ 8413. Transfers and continuity

(a) All books, records, papers, maps, charts, plans and

other material including, but not limited to, any equipment in the possession of any agency of the State and used in connection with a function hereby transferred to the Department shall on the effective date of this Chapter be delivered into the custody of the Department. All investigations, petitions, hearings, and legal proceedings pending before or instituted by any agency from which functions are hereby transferred and not concluded prior to the effective date of this Chapter shall continue unabated and remain in full force and effect, notwithstanding the passage of this Chapter and, where necessary, may be completed before, by, or in the name of the Department. All orders, rules and regulations made by any agency from which functions are hereby transferred and governing such functions and which are in effect upon the effective date of this Chapter shall remain in full force and effect until revoked or modified in accordance with law by the Department. All contracts and obligations of any agency made or undertaken in the performance of a function hereby transferred to the Department and being in force on the effective date of this Chapter, shall, notwithstanding the provisions of this Chapter, remain in full force and effect and be performed by the Department.

(b) All employees of any commission, board, department, council or agency, to the extent that the same are consistent with this Chapter and in connection with a function hereby transferred to the Department, shall continue and be deemed to be the employees of the Department on the effective date of this Chapter and, where applicable, with all the benefits accrued as merit employees as of the effective date of this Chapter.

(c) All definitions and references to any commission, board, department, council or agency which appear in any other Act or law shall, to the extent that the same are consistent with this Chapter and in connection with a function hereby transferred to the Department, be construed as referring and relating to the Department of Highways and Transportation as created and established herein.

(d) All definitions and references to any director, commissioner, executive secretary, commission, board or council member or other similar person which appear in any other Act or law, shall, to the extent that same are consistent with this Chapter, and in connection with a function hereby transferred to the Department, be construed as referring or relating to such person or persons and their powers, duties and functions as established and created herein.

§ 8414. Annual Report

The Secretary of the Department shall make an annual report to the Governor and the General Assembly of the Department's operations, and render such other reports as the Governor or General Assembly may from time to time request or as may be required by law.

§ 8415. Misnomer of Department in donation

Any misnomer shall not defeat or annul any gift, grant, devise or bequest to the Department if it sufficiently appears by the will, conveyance or other writing, that the party making the same intended to pass and convey thereby to the Department or to any commission, board, department, authority, council or agency, to which, by the provisions of the Act, the powers, duties and functions have been transferred to the Department, the estate or interest therein expressed or described.

§ 8416. Budgeting and Financing

The Secretary, in cooperation with the division directors, shall prepare a proposed budget for the operation of the Department to be submitted for the consideration of the Governor and the General Assembly. The Department shall be operated within the limitation of the Annual Appropriation and any other funds appropriated by the General Assembly.

Special funds be used in accordance with approved programs, grants and appropriations.

§ 8417. Severability

If any provision of Section 1 of this Chapter, or of any rule, regulation or order thereunder of the application of such provision to any person or circumstances, shall be held invalid, the remainder of this Chapter and the application of such provisions of this Chapter or of such rule, regulation or order to persons or circumstances other than those to which it is held invalid, shall not be affected hereby.

Section 2. The provisions of this Act shall become effective on the date which the Governor designates in an executive order stating that he has found it administratively feasible to implement this Act or on January 1, 1971, whichever first occurs.

Section 3. The sum of fifty thousand dollars ($50,000) is hereby appropriated to the Governor for the fiscal year ending June 30, 1970, for the purpose of implementing the provisions of this Act. This appropriation shall be considered as a supplementary appropriation and shall be paid out of funds not otherwise appropriated, and any portion thereof which is unexpended or unencumbered as of June 30, 1971, shall revert to the General Fund.

Section 4. Any sums appropriated to any board, commission, department, council or agency affected by this Act and which, upon the effective date of this Act, are unencumbered or unexpended shall be and are hereby appropriated and transferred to the Department of Highways and Transportation.

Approved June 5, 1970.