CHAPTER 549

AN ACT TO AMEND TITLE 29, DELAWARE CODE, BY CREATING A NEW CHAPTER TO BE DESIGNATED AS CHAPTER 83 RELATING TO THE ESTABLISHMENT OF A DEPARTMENT OF FINANCE, 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 83 to read as follows:

CHAPTER 83. DEPARTMENT OF FINANCE

§ 8301. Establishment of Department of Finance

A Department of Finance is hereby established.

§ 8302. Secretary; Division Directors; Acting Secretary; Appointment

(a) The administrator and head of the Department shall be the Secretary of the Department of Finance, 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.

(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.

§ 8303. 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, 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 Accounting, who shall be known as the Director of Accounting, and who shall be qualified by training and experience to perform the duties of his office.

(2) A Director of the Division of Revenue, who shall be known as the Director of Revenue, and who is generally known to possess knowledge of the subject of taxation and has recognized ability and wide experience in administrative positions, and has had the right to vote for a member of the General Assembly of this State at the last general election preceding his appointment.

(3) A Director of the Division of the Treasury, who shall be known as the Director of the Treasury, 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, consolidate or abolish such divisions 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 contract for the services of private and public consultants, research and 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;

(f) 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;

(g) 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;

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

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

§ 8301. Division of Accounting

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

The Division of Accounting shall:

(1) Audit, inspect and examine the accounts, affairs and records of any agency of this State at such times as it deems expedient for the supervision of fiscal affairs;

(2) Reject all bills, statements, accounts, and demands against the State which do not conform with such controls as are adopted by the Budget Director;

(3) Prepare the form to be used in making out accounts or statements of indebtedness and supply the several departments and agencies with a sufficient number of blank forms for use as accounts or statements of indebted/1m; for the year. Such forms shall contain a notice that no account or statement of indebtedness thereon shall be valid unless accompanied by the order or requisition authorizing such account or statement of indebtedness;

(0) Report to the General Assembly, the Attorney General and the Budget Director in writing any irregular, illegal or improper financial administration or transaction;

(0) In addition to the foregoing, the Division of Accounting shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in the Budget Director pursuant to Title 29, Delaware Code, § 6511, § 6512 (b), (c) and (e), § 6515, § 6516, § 6518, § 6520 (b) and (c), § 6521, § 6522, § 6523, § 6524, § 6525, §6526, and § 6527.

§ 8305. Division of Revenue

The Division of Revenue is hereby established having powers, duties and functions as follows:

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

(1) The State Tax Department and the State Tax Commissioner pursuant to Title 30, Delaware Code, Chapters 1, 3, 11, 13, 15, 17, 19, 20, 21, 23, 25, 27, 29, 31, 53 and 54;

(2) The Collector of State Revenue, the State Tax Department and the State Tax Commissioner pursuant to the provisions of Title 30, Delaware Code, Chapter 5;

(b) In addition to the foregoing, the Division of Revenue shall have the power to perform and shall be responsible for the performance of the following powers:

(1) To issue licenses, permits or other documents; to require the payment of fees, taxes or other assessments, and the filing of affidavits or other documents relating thereto; and to enforce the payment and collection of the same heretofore vested in:

(i) The State Treasurer pursuant to the provisions of Title 30, Delaware Code, Chapters 33, 35, 37, 39 and 41;

(ii) The State Highway Department pursuant to the provisions of Title 30, Delaware Code, Chapter 51;

() The Employment Security Commission pursuant to the provisions of Title 19, Delaware Code, § 3155.

(2) To require the payment of fees, taxes and other assessments, and the filing of affidavits or other documents relating thereto; and to enforce the payment and collection of the same heretofore vested in:

(i) The Superintendent of the Delaware State Police pursuant to the provisions of Title 24, Delaware Code, § 1304;

(ii) The Delaware Alcoholic Beverage Control Commission pursuant to the provisions of Title 4, Delaware Code, §§ 551, 564, 572 and 581;

() The Delaware Real Estate Commission pursuant to the provisions of Title 24, Delaware Code, §§ 2908, 2911, 2918, and 2920;

(i) The Industrial Accident Board, the State Treasurer and the Insurance Commissioner of the State of Delaware pursuant to the provisions of Title 19, Delaware Code, §§ 2391 and 2392;

(ii) The Delaware Harness Racing Commission pursuant to the provisions of Title 28, Delaware Code, §§ 523, 530, 555 and 558;

(iii) The Delaware Racing Commission pursuant to the provisions of Title 28, Delaware Code, §§ 323, 330, 365, 368, 404, 411, 445, and 448.

(c) The Division of Revenue shall have the power to establish and promulgate such rules and regulations to implement its powers set forth in § 8305 (b), above, as it deems necessary and which are not inconsistent with the laws of this State.

(d) The executive, administrative, ministerial, fiscal and clerical functions of the State Tax Board set forth in Title 30, Delaware Code, Chapter 3, Subchapter II, shall be performed by the Division of Revenue.

§ 8306. Tax Appeal Board

(a) The State Tax Board, created by the provisions of Title 30, Delaware Code, Chapter 3, Subchapter II, hereby renamed the Tax Appeal Board, is continued.

(b) Except as otherwise provided in § 8305 (d), above, the Tax Appeal Board is vested with the membership, remuneration, organization, meetings, powers, duties and functions heretofore vested in the State Tax Board by law, including the power to hear complaints and appeals from the decisions or rulings of the Director of Revenue as the same heretofore existed in respect to decisions or rulings of the State Tax Commissioner pursuant to the provisions of Title 30, Delaware Code, Chapter 3, Subchapter II. The right of appeal from determinations of the State Tax Board heretofore existing pursuant to the provisions of Title 30, Delaware Code, Chapter 3, Subchapter II, is hereby continued respecting appeals from determinations of the Tax Appeal Board.

§ 8307. Division of the Treasury

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

(1) The Division of the Treasury 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 Treasurer and the Trustee of the School Fund pursuant to the provisions of Title 29, Delaware Code, Chapter 27;

(ii) The State Treasurer pursuant to the provisions of Title 14, Delaware Code, § 106; Title 19, Delaware Code, Chapter 31; Title 30, Delaware Code, Chapters 51 and 54;

(iii) The State Tax Department pursuant to the provisions of Title 29, Delaware Code, Chapter 57.

(2) The Division of the Treasury shall be responsible for the clerical administration of all State pension funds, the determination of eligibility for non-disability retirement pension benefits as provided for in Title 29, Delaware Code, Chapters 55 and 56; Title 14, Delaware Code, Chapter 39; and Title 11, Delaware Code, Chapter 83, Subchapter II, the determination of eligibility for paraplegic veterans' benefits as provided for in Title 20, Delaware Code, § 1001, and 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 Treasurer pursuant to the provisions of Title 29, Delaware Code, Chapter 55; Title 20, Delaware Code, § 1001; Title 11, Delaware Code, Chapter 83, Subchapter II;

(ii) The State Treasurer and the Secretary of the State Board of Education pursuant to the provisions of Title 14, Delaware Code, Chapter 39;

() The State Treasurer and the Board of State Judiciary Pension Trustees pursuant to the provisions of Title 29, Delaware Code, Chapter 56, except as set forth in § 8308 (b) (4) (iii) below;

§ 8308. Board of Pension Trustees

(a) There is hereby established a Board of Pension Trustees.

(b) The Board shall have:

(1) Control and management of the State pension funds provided for in this subsection (b);

(2) The power and duty to determine eligibility for disability pension benefits;

(3) The power and duty to hear appeals from the decision or action of the Division of the Treasury regarding eligibility for non-disability pension benefits provided for in Title 29, Delaware Code, Chapters 55 and 56; Title 14, Delaware Code, Chapter 39; Title 11, Delaware Code, Chapter 83, Subchapter II; and

(4) Except for said administrative functions to be performed by the Division of the Treasury in § 8307 (a) (2) and (3) above, the Board 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 Arbitration Committee and the Disability Commission pursuant to the provisions of Title 29, Delaware Code, Chapter 55;

(ii) The State Board of Education and the Superintendent of the Delaware State Hospital pursuant to the provisions of Title 14, Delaware Code, Chapter 39;

(iii) The Board of State Judiciary Pension Trustees pursuant to the provisions of Title 29, Delaware Code, Chapter 56;

(iv) The State Police Pension Board pursuant to the provisions of Title 11, Delaware Code, Chapter 83, Subchapter II;

(c) In addition to the foregoing, the Board shall have the following powers, duties and functions;

(1) To adopt rules and regulations for the general administration of the State pension plans and benefits set forth in § 8308 (b) above;

(2) To appoint an actuary to perform the actuarial services necessary to effectuate the purposes of this section;

(3) To prepare and publish an annual report to the Governor and General Assembly on its activities including a_dministration expenses;

(4) To maintain and invest the pension funds under its control and management;

(5) To make and enter into any and all contracts with any agency of the State, or any outside agency, for the purpose of assisting in the general administration of this section and the investing or advising as to the investment of the pension funds under its control and management;

(6) To determine the interest rate to be credited to employee contributions and the rate to be charged on repayment of contributions previously withdrawn.

(d) The Board of Pension Trustees, upon the effective date of this chapter, shall be composed of seven members as follows:

(1) The Budget Director and the Director of the State Personnel Commission shall serve ex-officio as voting members; and

(2) Five other members who shall be appointed by the Governor with the consent of a majority of the members elected to the Senate.

(e) The terms of the appointed members shall be staggered. The first appointee shall serve for a term of one (1) year; the second appointee shall serve for a term of two (2) years; the third appointee shall serve for a term of three (3) years; and the fourth appointee shall serve for a term of four (4) years. Thereafter, appointed members shall serve for a term of four (4) years. The seventh member shall serve at the pleasure of the Governor and shall be Chairman of the Board.

(f) Each appointed member of the board shall be paid $25 for each day devoted to Board business, but not more than $600 in any one fiscal year. Members shall be entitled to reimbursement for travel and other expenditures made necessary by their official duties.

(g) Any appointment, by the Governor by and with the consent of a majority of the members elected to the Senate, 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.

§ 8309. 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 Finance

(2) Director of Accounting

(3) Director of Revenue

(4) Director of the Treasury

§ 8310. Functions prior to effective date of this 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 Budget Director, State Tax Department, State Tax Board, Collector of State Revenue, State Treasurer, Arbitration Committee, Disability Commission, Board of State Employees' Pension Trustees, Board of State Judiciary Pension Trustees, and State Police Pension Board 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; excepting only those powers, duties and functions hereinabove expressly vested in or retained by any such person, department, board, commission or agency.

§ 8311. 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 division 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.

§ 8312. 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 Finance 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.

§ 8313. 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.

§ 8314. 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.

§ 8315. 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 may be used in accordance with approved programs, grants and appropriations.

§ 8316. Severability

If any provision 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 Section 1 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 Finance.

Approved June 11, 1970.