CHAPTER 570

AN ACT TO AMEND TITLE 29, DELAWARE CODE, BY CREATING A NEW CHAPTER TO BE DESIGNATED AS CHAPTER 87 RELATING TO THE ESTABLISHMENT OF A DEPARTMENT OF STATE, DEFINING ITS ORGANZATION, 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 87 to read as follows:

CHAPTER 87. DEPARTMENT OF STATE

§ 8701. Establishment of Department of State

(a) A Department of State is hereby established having, in addition to the other powers, duties and functions vested in the Department by the provisions of this Chapter, the following powers, duties and functions:

(1) The Department of State shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in the Secretary of State pursuant to the provisions of Title 29, Delaware Code, Chapter 23.

§ 8702. Secretary; Division Directors; Acting Secretary; Appointment

(a) The administrator and head of the Department shall be the Secretary of State, and preference shall be given to a resident of this State provided that he is acceptable and equally qualified. The Secretary of State shall be appointed by the Governor as provided in the Constitution of the State of Delaware. He shall be paid an annual salary not in excess of $25,000.

(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 Assistant to the Secretary of State and division director as are vacant. Persons so appointed shall serve at the pleasure of the Governor and upon the position of Secretary being filled such persons 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 Assistant to the Secretary of State or the director of any division of the Department to serve as Acting Secretary. The Secretary may, during his absence from the State, appoint the Assistant to the Secretary of State or 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.

§ 8703. Powers, duties and functions of the Secretary

The Secretary of State shall have, in addition to his other powers, duties and functions as provided by law, 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 director, 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 Corporations, who shall be known as the Director of Corporations, and who shall be qualified by training and experience to perform the duties of his office.

(2) A Director of the Division of Archives and Cultural Affairs, who shall be known as the Director of Archives and Cultural Affairs, 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, 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 contract for the services of private and public consultants, research and technical personnel and to procure by contact, 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;

(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;

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

§ 8704. Division of Corporations

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

(1) The Division of Corporations shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in the Secretary of State pursuant to the provisions of Title 5A, Delaware Code, and Title 8, Delaware Code.

§ 8705. Division of Archives and Cultural Affairs

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

(1) The Division of Archives and Cultural Affairs 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 Public Archives Commission and the State Archivist pursuant to the provisions of Title 29, Delaware Code, Chapter 33;

(ii) The Lewes Memorial Commission pursuant to the provisions of Title 7, Delaware Code, Chapter 49;

() The Delaware Day Commission pursuant to the provisions of Title 29, Delaware Code, Chapter 37;

(i) The Portrait Commission pursuant to the provisions of Title 29, Delaware Code, Chapter 35;

(ii) The Delaware Archaeological Board pursuant to the provisions of Title 7, Delaware Code, Chapter 54.

§ 8706. Council on Archives and Cultural Affairs

(a) There is hereby established the Council on Archives and Cultural Affairs.

() The Council on Archives and Cultural Affairs shall serve in an advisory capacity to the Director of Archives and Cultural Affairs and shall consider matters relating to the care and preservation of historical and current public records; the acquisition, care and preservation of historic buildings, sites or objects within this State; the perpetuation of our national heritage and culture and such other matters as may be referred to it by the Governor, Secretary of the Department or Director of Archives and Cultural Affairs. The Council may study, research, plan and advise the Director, the Secretary and the Governor on matters it deems appropriate to enable the Division to function in the best possible manner.

(c) The Council on Archives and Cultural Affairs, upon the effective date of this Chapter, shall be composed of the members of the Public Archives Commission, the Lewes Memorial Commission, the Delaware Day Commission, the Portrait Commission and the Delaware Archaeological Board whose terms, as of the effective date of this Chapter, have not expired, and the Chairman of the Delaware State Arts Council and the Poet Laureate who shall serve on the Council ex-officio as voting members. Each member shall serve as a member of the Council on Archives and Cultural Affairs for the period of his unexpired term unless he vacates his position by resignation, death or incapacity. When the number of members has been reduced to less than seven (7) by reason of expiration of terms, resignation, death or incapacity, the Governor shall appoint new members. The terms of the newly appointed members shall be staggered. The first appointee 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 two (2) 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.

(d) When the number of members of the Council has been reduced to less than seven (7), at least three (3), but no more than four (4), of the newly appointed members shall be affiliated with one of the major political parties. At least two (2), but no more than three (3), of the newly appointed members shall be affiliated with the other major political party; provided, however, there shall be no more than a bare majority representation of one major political party over the other major political party. Any person who declines to announce his political affiliation shall also be eligible for appointment as a member of the Council.

(e) 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.

(f) 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.

(g) 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.

§ 8707. Books, records; access; annual report

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

(b) The Chairman of the Council of Archives and Cultural Affairs shall make an annual report of the activities of the 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.

§ 8708. Exemptions

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

(a) Secretary of State;

(b) Assistant to the Secretary of State;

(c) Director of Corporations;

(d) Director of Archives and Cultural Affairs.

§ 8709. 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 Secretary of State, the Public Archives Commission and the State Archivist, the Lewes Memorial Commission, the Delaware Day Commission, the Portrait Commission and the Delaware Archaeological 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.

§ 8710. 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.

§ 8711. 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 State 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.

§ 8712. Annual Report

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

§ 8713. 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.

§ 8714. 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.

§ 8715. 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 (00,000) is hereby appropriated to the Governor for the fiscal year ending June 30, 1971, 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 State.

Approved June 22, 1970.