HOUSE BILL NO. 433
AN ACT ESTABLISHING A NEW CHARTER FOR THE "TOWN OF MIDDLETOWN."
Be it enacted by the General Assembly of the State of Delaware (Two-thirds of all members elected to each House concurring therein):
Section 1. Amend Chapter 249, Volume 56, Laws of Delaware by striking the same in its entirety and substituting in lieu thereof the following:
MUNICIPAL CORPORATE NAME AND
Section 1-a. The municipal corporation of the State of Delaware, now known as "The Mayor and Council of Middletown," shall hereafter be known as the "Town of Middletown," sometimes referred to herein as the "Town" and the inhabitants thereof within the corporate limits as defined in Section 3 of this Act or subsequently altered by annexation procedures shall, under the name of the "Town of Middletown," continue to be a municipal body politic and corporate in perpetuity and under such name may have and use a common seal and may sue and be sued.
b. The Town shall have all powers possible for a municipal corporation to have under the Constitution and laws of the State of Delaware as fully and completely as though they were specifically enumerated in this charter. The Town shall continue to enjoy all powers which have been granted to it by special acts of the General Assembly of the State of Delaware, except insofar as they may be repealed by enactment of this charter. The Town of Middletown, as a body politic and corporate, shall succeed to, own or possess all property whether real, personal or mixed, and all the rights, privileges, franchises, powers and immunities now belonging to, possessed by, or enjoyed by the former corporation known as "The Mayor and Council of Middletown."
The Town may have and use a common seal, may sue and be sued, may acquire property within or without its corporate limits by purchase, gifts, devise, lease or condemnation, for the purpose of providing sites for public buildings, parks, sewer system, sewage treatment plant, water system, water plant, gas or electrical system, or other municipal purposes, and may sell, lease, mortgage, hold, manage and control such property or utility as its interest may require; and except as prohibited by the Constitution of the State of Delaware or restricted by this charter, the Town shall and may exercise all municipal powers, functions, rights, privileges and immunities of every name and nature whatsoever.
c. The powers of the Town under this charter shall be construed liberally; and the enumeration of specific powers by this charter shall not be held to be exclusive, or to restrict in any way, the general power stated in this section. All powers of the Town shall be exercised in the manner prescribed in this charter, or, if not prescribed herein, then in a manner provided by ordinance or resolution of the Council.
Section 2. The Town may exercise any of its powers or perform any of its functions and may participate in the financing thereof, jointly or in cooperation, by contract or otherwise, with any one or more states or civil divisions or agencies thereof, or the United States or agency thereof; and without limiting the foregoing, the Town shall have the power to transfer to New Castle County any local service function pursuant to the terms and provisions of Title 9, Chapter 11, Subchapter I, Delaware Code of 1953, as amended.
Section 3-a. The limits and bounds of the Town of Middletown are hereby established and declared to be as follows:
Beginning at a point in the center of the public road leading from the Town of Middletown to Summit Bridge known as Delaware Route No. 896 and the center of a stream known as Saw Mill Branch; thence from said point of Beginning along the center line of the aforesaid stream in an easterly direction approximately 2615 feet to a point, a corner for lands now or late of George Cooper; thence by the same in a northeasterly direction approximately 169 feet to a point in line of lands now or late of Oscar Goodland; thence by the same in a southeasterly direction approximately 1293 feet to the center of the aforesaid stream; thence by the center line of the aforesaid stream in an easterly direction approximately 1475 feet to a point, a corner for lands now or late of Russell F. Cleaver; thence by the centerline of the aforesaid stream in an easterly direction approximately 372 feet to a point, a corner for lands now or late of Thomas D. Whittington; thence by the same in a northeasterly direction approximately 1832 feet to the center of a stream known as Mill Branch; thence by the centerline of the aforesaid stream in an easterly direction approximately 2900 feet to the intersection of the aforesaid stream and Saw Mill Branch; thence by the centerline of Saw Mill Branch in a southwesterly direction approximately 1500 feet to a point, a corner of the lands now or late of Felix J. Rutowski; thence by the aforesaid lands (1) in a southerly direction approximately 376 feet, (2) in a southerly direction approximately 870 feet and (3) in a southwesterly direction approximately 693 feet to a point, a corner of lands now or late of Louis N. Pederson; thence by the aforesaid lands (1) in a westerly direction approximately 693 feet and (2) in a southwesterly direction approximately 495 feet to a point, a corner for lands now or late of Howard D. Ratledge; thence, in a southeasterly direction approximately 1492 feet to the centerline of East Main Street; thence along the centerline of East Main Street in a westerly direction approximately 3082 feet to a point, said point being an original corner for the Town of Middletown ; thence along the original boundary line of the Town of Middletown in a southwesterly direction to a point, a corner of lands known as the Green Farm now or late of John Green ; thence along the eastern boundary of the aforesaid lands in a southerly direction approximately 5000 feet to the center of the northerly branch of the Appoquinimink Creek; thence along the centerline of the aforesaid stream and the centerline of a stream known as Deep Creek in a westerly direction approximately 3600 feet to the centerline of Delaware Route No. 896, also known as Broad Street; thence along the centerline of the aforesaid Delaware Route No. 896 in a southerly direction approximately 713 feet to the centerline of Saint Annes Road; thence along the centerline of the aforesaid road in a southwesterly direction approximately 1436 feet to a point where the aforesaid road curves ; thence, continuing in the same southwesterly direction leaving the center of the aforesaid road a distance of approximately 120 feet to the easterly side of the right of way of the Delaware Branch of the Pennsylvania Railroad; thence, continuing in the same southwesterly direction crossing the right of way of the Delaware Branch of the Pennsylvania Railroad approximately 332 feet to a point in the center of Saint Annes Road; thence in a northwesterly direction an unknown distance to the northerly side of the aforesaid road; thence along the northerly side of the aforesaid road in a southwesterly direction approximately 206 feet to a point, a corner of the lands now or late of Henry J. Kwasnieski; thence by the aforesaid lands (1) in a northwesterly direction approximately 586 feet to a small stream, (2) in a southwesterly direction up said stream approximately 462 feet, (3) in a northwesterly direction approximately 1249 feet, (4) in a northerly direction approximately 952 feet, and (5) in a northeasterly direction 841 feet to a point in the marsh, a corner of lands now or late of Middletown Building Co.; thence by the line of lands now or late of the aforesaid Middletown Building Co., (1) in a northerly direction approximately 1799 feet to a point, (2) in an easterly direction approximately 63 feet to a point, and (3) in a northerly direction approximately 240 feet to a point, said point being on the original boundary line of the Town of Middletown ; thence along the original boundary line as aforesaid in a northwesterly direction to a point, said point being an original boundary line of the Town of Middletown ; thence along the original boundary line of the Town of Middletown in a northeasterly direction to a point, said point being in the center of the right of way for the Delaware Branch of the Pennsylvania Railroad; thence along the center of the aforesaid right of way in a northerly direction approximately 1190 feet to a point in the line of lands now or late of Globe Union, Inc., said line being the southerly property line of lands now or late of Globe Union, Inc.; thence by the same in an easterly direction approximately 1000 feet to a point in the centerline of said Delaware Route No. 896, also known as North Broad Street; thence along said centerline in a northerly direction approximately 2240 feet to the point and place of Beginning.
b. The Town of Middletown shall have the power to annex any additional territory contiguous to its present limits and bounds and extend and apply to such additional territory all laws, ordinances and resolutions in force within said Town, so far as they may be applicable.
c. Additional territory contiguous to the Town of Middletown may be annexed by any of the following methods:
(1) Upon presentation to Council of a petition signed by real estate owners of the contiguous territory, who own a majority of the assessed value of the land proposed for annexation, Council may, by ordinance, proceed to annex such territory. The petition shall have attached thereto a survey of the territory proposed to be annexed and shall contain a request as to the zoning classification to be applied to such territory, and in addition, shall contain a sworn affidavit signed by at least one of the petitioners stating that the petitioners seeking annexation own the majority of assessed value of real estate situate within the territory proposed for annexation as determined by the real estate assessed to each individual owner thereof on the assessment records of New Castle County.
(2) By ordinance duly passed by Council, the Town may annex lands which it wholly owns, without an election.
d. Prior to adoption by Council of an ordinance annexing contiguous territory, the request or recommendation as to zoning contained in the petition or resolution calling for annexation must first be processed in accordance with applicable laws and Town zoning ordinances. An ordinance providing for zoning of the territory shall be adopted at the same time as that providing for annexation by the Town.
STRUCTURE OF GOVERNMENT
Section 4. The Mayor and the Town Council shall constitute the legislative body of the Town of Middletown and together shall be designated the Council. All powers of the Town shall be vested in the Council, except as otherwise provided by law or this charter, and the Council shall provide for the exercise thereof and for the performance of all duties and obligations imposed on the Town by law.
a. There shall be a Town Council of five members elected by the qualified voters of the Town at large. The number of Town Council may be increased from five members up to nine members by referendum, in accordance with the terms and provisions of Section 39 of this Charter.
b. Any qualified voter of the Town, who has not been convicted of a crime involving moral turpitude and who has resided in the Town for at least 30 days prior to filing written notice of his candidacy pursuant to Section 38-e, shall be eligible for the office of councilman.
c. The regular election of councilman shall be held on the first Monday in March of every year in the manner provided in Section 38. At the first election under this charter three councilmen shall be elected; the two candidates receiving the greatest number of votes shall serve for terms of three years, and the candidate receiving the next greatest number of votes shall serve for a term of two years. The councilmen presently in office shall serve until their terms expire. Commencing at the next regular Town election under this charter and at all subsequent regular Town elections, councilmen equal in number to those whose terms expire shall be elected, each to serve for a three-year term.
Section 6-a. The Mayor shall be executive of the Town and shall be ex-officio a member of Council. He shall have the following powers and duties:
(1) He shall preside at meetings of the Council but shall have no vote unless the Town Council be equally divided;
(2) He shall execute on behalf of the Town, when authorized by Council, all agreements, contracts, bonds, deeds, leases, and other documents necessary to be executed;
(3) He shall appoint all committees, and shall be a member, ex-officio, of the same;
(4) He shall countersign all orders, checks and warrants authorized by Council and calling for payment of Town monies;
(5) He shall have the power to administer oath and affirmation; and
(6) He shall have all and every power conferred, and perform the duties imposed upon him by this charter or the ordinances of the Town.
b. Any qualified voter of the Town, who has not been convicted of a crime involving moral turpitude, and who has resided in the Town for at least 30 days prior to filing written notice of his candidacy pursuant to Section 38-e, shall be eligible for the office of Mayor.
c. The Mayor shall be elected at the regular Town election every three years beginning in 1973 by the qualified voters of the Town for a term of three years to begin on the date of his election, but the incumbent Mayor shall continue until his successor has been elected and has taken office.
COMPENSATION AND EXPENSES OF MAYOR
Section 7. The Council may determine the annual salary of councilmen and the Mayor by ordinance, but no ordinance increasing the salary of councilmen and no ordinance increasing the salary of the Mayor shall become effective until the date of commencement of the terms of councilmen elected at the next regular election or until the date of commencement of the term of the Mayor next elected, provided that such election, in either case, follows the adoption of such ordinance by at least six months. Council shall not decrease the salary of the Mayor during his term of office. Councilmen and the Mayor shall receive their actual and necessary expenses incurred in the performance of their duties of office.
VACANCIES AND FORFEITURE OF OFFICE
Section 8-a. The office of a councilman or the office of the Mayor shall become vacant upon his death, resignation, removal from office in any manner authorized by law or forfeiture of his office.
b. A councilman shall forfeit his office if he (1) lacks at any time during his term of office any qualification for the office prescribed by this charter or by law, (2) violates any express prohibition of this charter, (3) is convicted of a crime involving moral turpitude, or (4) fails to attend three consecutive regular meetings of the Council without being excused by the Council.
c. A vacancy in the Town Council shall be filled for the remainder of the unexpired term, if any, at the next regular election following not less than 60 days upon the occurrence of the vacancy, but the Council by a majority vote of all its remaining members shall appoint a qualified person to fill the vacancy until the person elected to serve the remainder of the unexpired term takes office. If the Council fails to do so within 30 days following the occurrence of the vacancy, the election authorities shall call a special election to fill the vacancy, to be held not sooner than 90 days and not later than 120 days following the occurrence of the vacancy and to be otherwise governed by the provisions of Section 38. Notwithstanding the requirement of Section 13 that a quorum of the Council consists of four members, if at any time the membership of the Town Council is reduced to less than three, the remaining members of the Council may by majority action appoint additional members to raise the membership to three.
d. In the case of temporary service by a councilman as Mayor or as president pro tempore, such person shall not be deemed to have vacated or forfeited his office as elected councilman. The councilman serving as president pro tempore shall be counted in ascertaining a quorum of Council but shall not vote as Mayor.
e. The Mayor shall forfeit his office if he (1) lacks at any time during his term of office any qualification for the office prescribed by this charter or by law or (2) violates any express prohibition of this charter, or (3) is convicted of a crime involving moral turpitude.
f. A vacancy in the office of Mayor shall be filled for the remainder of unexpired term, if any, at the next regular election following not less than 60 days upon the occurrence of the vacancy, but the Town Council by a majority vote of its members shall appoint one of its members to fill the vacancy until the person elected to serve the remainder of the unexpired term takes office. If the Town Council fails to do so within 30 days following the occurrence of the vacancy, the election authorities shall call a special election to fill the vacancy, to be held not sooner than 90 days and not later than 120 days following the occurrence of the vacancy and to be otherwise governed by the provisions of Section 38.
g. In the case of the temporary absence or inability to act of the Mayor, the Town Council shall appoint a president pro tempore from among its members to act in such temporary absence or inability of the Mayor.
JUDGE OF QUALIFICATIONS
Section 9. The Council shall be the judge of the election and qualifications of councilmen and the Mayor and of the grounds for forfeiture of their offices and for that purpose shall have power to subpoena witnesses, administer oaths and require the production of evidence. A member of the Town Council or the Mayor charged with conduct constituting grounds for forfeiture of his office shall be entitled to a public hearing on demand, and notice of such hearing shall be published in one or more newspapers of general circulation in the Town at least one week in advance of the hearing. Decisions made by the Council under this section shall be subject to review by the Superior Court of the State of Delaware.
Section 10. The Council shall appoint an officer of the Town who shall have the title of Town clerk. The Town clerk shall give notice of Council meetings to its members and the public, keep the journal of its proceedings and perform such other duties as are assigned to him by this charter or by the Council.
Section 11. The Council may make investigations into the affairs of the Town and the conduct of any Town department, office or agency and for that purpose may subpoena witnesses, administer oaths, take testimony and require the production of evidence. Any person who fails or refuses to obey a lawful order issued in the exercise of these powers by Council shall be guilty of a misdemeanor and punishable by a fine of not more than $25, or by imprisonment for not more than 30 days, or both.
Section 12. The Council shall provide for an independent annual audit of all Town accounts and may provide for such more frequent audits as it deems necessary. Such audits shall be made by a certified public accountant or firm of such accountants who have no personal interest, direct or indirect, in the fiscal affairs of the Town government or any of its officers. The Council may, without requiring competitive bids, designate such accountant or firm annually or for a period not exceeding three years, provided that the designation for any particular fiscal year shall be made no later than 30 days after the beginning of such fiscal year. If the State of Delaware makes such an audit, the Council may accept it as satisfying the requirements of this section.
Section 13-a. The Council shall meet regularly at least once in every month at such times and places as the Council may prescribe by rule. Special meetings may be held on the call of the Mayor or of three or more councilmen and, whenever practicable, upon no less than two hour's notice to each member. All meetings shall be public; however, the Council may recess for the purpose of discussing in a closed or executive session limited to its own elected membership any matter which would tend to defame or prejudice the character or reputation of any person, provided that the general subject matter for consideration is expressed in the motion calling for such session and that final action shall not be taken by the Council until the matter is placed on the agenda.
b. The Council shall determine its own rules and order of business and shall provide for keeping a journal of its proceedings. This journal shall be a public record, subject to inspection by residents of the Town.
c. Voting, except on procedural motions, shall be by roll call and the ayes and nays shall be recorded in the journal. Four of the members elected to the Council shall constitute a quorum, but a smaller number may adjourn from time to time and may compel the attendance of absent members in the manner and subject to the penalties prescribed by the rules of the Council. No action of the Council, except as otherwise provided in the preceding sentence and in Section 8, shall be valid or binding unless adopted by the affirmative vote of a majority of the persons present and entitled to vote.
Section 14-a. In addition to other acts required by law or by specific provision of this charter to be done by ordinance, those acts of the Town shall be by ordinance which:
(1) Adopt or amend an administrative code or establish, alter or abolish any Town department, office or agency;
(2) Provide for a fine or other penalty or establish a rule or regulation for violation of which a fine or other penalty is imposed;
(3) Levy taxes, except as otherwise provided in Section 23 with respect to taxes levied by the adoption of the budget;
(4) Grant, renew or extend a franchise;
(5) Regulate the rate charged for its services by a public utility of the Town;
(6) Authorize the borrowing of money, except as otherwise provided in Section 27;
(7) Convey or lease or authorize the conveyance or lease of any lands of the Town;
(8) Adopt with or without amendment ordinances proposed under the initiative power; and
(9) Amend or repeal any ordinance previously adopted, except as otherwise provided in Section 39 with respect to repeal of ordinances reconsidered under the referendum power.
Acts other than those referred to in the preceding sentences may be done either by ordinance or resolution.
b. Every proposed ordinance shall be introduced in writing and in the form required for final adoption. No ordinance shall contain more than one subject which shall be clearly expressed in its title. The enacting clause shall be "The Town of Middletown hereby ordains." Any ordinance which repeals or amends an existing ordinance or part of the Town code shall set out in full the ordinance, section or subsections to be repealed or amended, and shall indicate matter to be omitted by enclosing it in brackets or by strikeout type and shall indicate new matter by underscoring or by italics.
c. An ordinance may be introduced by any elected councilman at any regular or special meeting of the Council. Upon introduction of any ordinance, the Town clerk shall distribute a copy to each Council member, shall file a reasonable number of copies in the office of the Town clerk and such other public places as the Council may designate, and shall publish the proposed ordinance together with a notice setting out the time and place for a public hearing thereon and for its consideration by Council. The public hearing shall follow the publication by at least seven days, may be held separately or in connection with a regular or special Council meeting and may be adjourned from time to time; all persons interested shall have an opportunity to be heard. After the hearing the Council may adopt the ordinance with or without amendment or reject it but, if it is amended as to any matter of substance, the Council may not adopt it until the ordinance or its amended sections have been subjected to all the procedures hereinbefore required in the case of a newly introduced ordinance.
d. Except as otherwise provided in this charter, every ordinance adopted by the Council shall become effective at the expiration of 30 days after adoption or at any later date specified therein.
e. All ordinances adopted by Council shall be published by the clerk with a notice of adoption, as soon as practicable after adoption.
. As used in this section, the term "publish" means to print in one or more newspapers of general circulation in the Town: (1) the ordinance or a brief summary thereof, and (2) the places where copies of it have been filed and the times when they are available for public inspection.
a. To meet a public emergency affecting life, health, property or the public peace, the Council may adopt one or more emergency ordinances, but such ordinances may not levy taxes, grant, renew or extend a franchise, regulate the rate charged by any public utility for its services or authorize the borrowing of money except as provided in subsection 24-b. An emergency ordinance shall be introduced in the form and manner prescribed for ordinances generally, except that it shall be plainly designated as an emergency ordinance and shall contain, after the enacting clause, a declaration stating that an emergency exists and describing it in clear and specific terms. An emergency ordinance may be adopted with or without amendment or rejected at the meeting at which it is introduced, but the affirmative vote of at least four members of Council shall be required for adoption. The ordinance shall become effective upon adoption or at such later time as it may specify. Immediately after its adoption, the ordinance shall be published and printed as prescribed for other ordinances. Every emergency ordinance except one made pursuant to subsection 24-b shall automatically stand repealed as of the sixty-first day following its adoption by Council, but this shall not prevent re-enactment of the ordinance in the manner specified in this section if the emergency still exists. Any emergency ordinance may also be repealed by adoption of a repealing ordinance in the same manner as specified in this section for the adoption of emergency ordinances.
CODES OF TECHNICAL REGULATIONS
Section 15. The Council may adopt any standard code of technical regulations by reference thereto in an adopting ordinance. The procedure and requirements governing such adopting ordinance shall be as prescribed for ordinances generally except that:
(1) The requirements of Section 14 for distribution and filing of copies of the ordinance shall be construed to include copies of the code of technical regulations as well as of the adopting ordinance; and
(2) A copy of each adopted code of technical regulations as well as of the adopting ordinance shall be authenticated and recorded by the Town clerk pursuant to subsection 16-a.
Copies of any adopted code of technical regulations shall be made available by the Town clerk for distribution or for purchase at a reasonable price.
AUTHENTICATION, RECORDING, PRINTING AND
CODIFICATION OF ORDINANCES AND RESOLUTIONS
Section 16-a. The Town clerk shall authenticate by his signature and record in full in a properly indexed book kept for the purpose all duly enacted ordinances and resolutions.
b. Within two years after the adoption of this charter and at least every five years thereafter, the Council shall provide for the preparation of a general codification of all Town ordinances and resolutions having the force and effect of law. The general codification shall be enacted by ordinance and shall be published promptly in bound or loose-leaf form, together with this charter and any amendments thereto, pertinent provisions of the Constitution and other laws of the State of Delaware and such codes of technical regulations as the Council may specify. This compilation shall be known and cited officially as the Middletown Code. Copies of the code shall be furnished to Town officers, placed in libraries and public offices for free public reference and made available for purchase by the public at a reasonable price fixed by the Council.
c. The Council shall cause each ordinance and resolution having the force and effect of law and each amendment to this charter to be printed promptly following its enactment, and the printed ordinances, resolutions and charter amendments shall be distributed or sold to the public at reasonable prices to be fixed by the Council. Following publication of the first Middletown Code and at all times thereafter, the ordinances, resolutions and charter amendments shall be printed in substantially the same style as the code currently in effect and shall be suitable in form for integration therein. The Council shall make such further arrangements as it deems desirable with respect to reproduction and distribution of any current changes in or additions to the provisions of the Constitution and other laws of the State of Delaware, or the codes of technical regulations and other rules and regulations included in the code.
Section 17-a. The Council shall appoint a Town Manager for an indefinite term and fix his compensation. The Manager shall be appointed solely on the basis of his executive and administrative qualifications. He need not be a resident of the Town or of the State of Delaware at the time of his appointment, but may reside outside the Town while in office only with the approval of the Council. No elected councilman or the Mayor shall, during the time for which elected, be appointed Town Manager.
b. The Council may remove the Manager from office in accordance with the following procedures:
(1) The Council shall adopt by affirmative vote of a majority of all its members a preliminary resolution which must state the reasons for removal and may suspend the Manager from duty for a period not to exceed 45 days. A copy of the resolution shall be delivered promptly to the Manager.
(2) Within five days after a copy of the resolution is delivered to the Manager, he may file with the Council a written request for a public hearing. This hearing shall be held at a Council meeting not earlier than 15 days and not later than 30 days after the request is filed. The Manager may file with the Council a written reply not later than five days before the hearing.
(3) The Council may adopt a final resolution of removal, which may be made effective immediately, by affirmative vote of a majority of its members at any time after five days from the date when a copy of the preliminary resolution was delivered to the Manager, if he has not requested a public hearing, or at any time after the public hearing if he has requested one.
The Manager shall continue to receive his salary until the effective date of a final resolution of removal. The action of the Council in suspending or removing the Manager shall not be subject to review by any court or agency.
c. By letter filed with the Town clerk the Manager shall designate, subject to approval of the Council, a qualified Town administrative officer to exercise the powers and perform the duties of Manager during his temporary absence or disability. During such absence or disability, the Council may revoke such designation at any time and appoint some qualified person to serve until the Manager shall return or his disability shall cease.
d. The Town Manager shall be the chief administrative officer of the Town. He shall be responsible to the Council for the administration of all Town affairs placed in his charge by or under this charter. He shall have the following powers and duties.
(1) He shall appoint and, when he deems it necessary for the good of the service, suspend or remove all Town employees and appointive administrative officers provided for by or under this charter, except as otherwise provided by law, this charter or personnel rules adopted pursuant to this charter. He may authorize any administrative officer who is subject to his direction and supervision to exercise these powers with respect to subordinates in that officer's department, office or agency.
(2) He shall direct and supervise the administration of all departments, offices and agencies of the Town, except as otherwise provided by this charter or by law.
(3) He shall attend all Council meetings and have the right to take part in discussion but may not vote.
(4) He shall see that all laws, provisions of this charter and acts of the Council, subject to enforcement by him or by officers subject to his direction and supervision, are faithfully executed.
(5) He shall prepare and submit the annual budget and capital program to the Council.
(6) He shall submit to the Council and make available to the public a complete report on the finances and administrative activities of the Town as of the end of each fiscal year.
(7) He shall make such other reports as the Council may require concerning the operations of Town departments, offices and agencies subject to his direction and supervision.
(8) He shall keep the Council fully advised as to the financial condition and future needs of the Town and make such recommendations to the Council concerning the affairs of the Town as he deems desirable.
(9) In conjunction with the Mayor, he shall sign all orders, checks and warrants authorized by Council and calling for payment of Town monies.
(10) He shall perform such other duties as are specified in this charter or may be required by the Council.
Section 18-a. By ordinance, the Council may establish Town departments, offices or agencies in addition to those created by this charter and may prescribe the functions of all departments, offices and agencies, except that no function assigned by this charter to a particular department, office or agency may be discontinued or, unless this charter specifically so provides, assigned to any other.
b. All departments, offices and agencies under the direction and supervision of the Manager shall be administered by an officer appointed by and subject to the direction and supervision of the Manager. All appointments hereunder shall be subject to approval of Council. With the consent of Council, the Manager may serve as the head of one or more of such departments, offices or agencies or may appoint one person as the head of two or more of them.
Section 19-a. All appointments and promotions of Town officers and employees shall be made solely on the basis of merit and fitness demonstrated by examination or other evidence of competence.
b. There shall be a personnel director, appointed by the Manager and approved by Council, who shall administer the personnel system of the Town.
c. There shall be a personnel board consisting of three members appointed by the Council for terms of three years from among the qualified voters of the Town. Members of the board shall hold no other Town office. The personnel director shall provide necessary staff assistance for the personnel board.
d. The personnel director shall prepare personnel rules. The Manager shall refer such proposed rules to the personnel board which shall report to the Manager its recommendations thereon. When approved by the Manager, the rules shall be proposed to the Council, and thereafter, the Council may by ordinance enact them with or without amendment. These rules shall provide for:
(1) The classification of all Town positions, based on the duties, authority and responsibility of each position, with adequate provision for reclassification of any position whatever warranted by changed circumstances;
(2) A pay plan for all Town positions;
(3) Methods for determining the merit and fitness of candidates for appointment or position;
(4) The policies and procedures regulating reduction in force and removal of employees;
(5) The hours of work, attendance regulations and provisions for sick and vacation leave;
(0) The policies and procedures governing persons holding provisional appointments;
(1) The policies and procedures governing relationships with employee organizations;
(2) Policies regarding in-service training programs;
(3) Grievance procedures, including procedures for the hearing of grievances by the personnel board, which may render advisory opinions based on its findings to the Mayor with a copy to the aggrieved employee; and
(4) Other practices and procedures necessary to the administration of the Town personnel system.
Section 20. There shall be a legal officer of the Town, appointed by Council to serve at its pleasure, who shall serve as chief legal advisor to the Town Council, the Mayor and all Town departments, officers and agencies, shall represent the Town in all legal proceedings and shall perform any other duties prescribed by this charter or by ordinance.
Section 21. The fiscal year of the Town shall begin on the first day of June and end on the last day of May.
SUBMISSION OF BUDGET AND CAPITAL PROGRAM
Section 22-a. On or before the first day of April of each year the Manager shall submit to the Council a budget for the ensuing fiscal year and an accompanying message.
b. The Manager's message shall explain the budget both in fiscal terms and in terms of the work programs. It shall outline the proposed financial policies of the Town for the ensuing fiscal year, describe the important features of the budget, indicate any major changes from the current year in financial policies, expenditures, and revenues together with the reasons for such changes, summarize the Town's debt position and include such other material as the Manager deems desirable.
c. The budget shall provide a complete financial plan of all Town funds and activities for the ensuing fiscal year and, except as required by law or this charter, shall be in such form as the Manager deems desirable or the Council may require. In organizing the budget the Manager shall utilize the most feasible combination of expenditure classification by fund, organization unit, program, purpose or activity, and object. It shall begin with a clear general summary of its contents; shall show in detail all estimated income, including and indicating the proposed rate of tax on real estate and the amount of per-capita tax and shall show all proposed expenditures including debt service, for the ensuing fiscal year; and shall be so arranged as to show comparative figures for actual and estimated income and expenditures of the current fiscal year and actual income and expenditures of the preceding fiscal year. It shall indicate in separate sections:
(1) Proposed expenditures for current operations during the ensuing fiscal year, detailed by offices, departments and agencies in terms of their respective work programs, and the method of financing such expenditures;
(2) Proposed capital expenditures during the ensuing fiscal year, detailed by offices, departments and agencies when practicable, and the proposed method of financing each such capital expenditure ; and
(3) Anticipated net surplus or deficit for the ensuing fiscal year of each utility owned or operated by the Town and the proposed method of its disposition; subsidiary budgets for each such utility giving detailed income and expenditure information shall be attached as appendices to the budget.
The budget shall be balanced so that the total of proposed expenditures shall not exceed the total of estimated income.
d. The Manager shall prepare and submit to the Council a five-year capital program at least two months prior to the final date for submission of the budget.
e. The capital program shall include:
(1) A clear general summary of its contents;
(2) A list of all capital improvements which are proposed to be undertaken during the five fiscal years next ensuing, with appropriate supporting information as to the necessity for such improvements;
(3) Cost estimates, method of financing and recommended time schedules for each such improvement; and
(4) The estimated annual cost of operating and maintaining the facilities to be constructed or acquired.
The above information may be revised and extended each year with regard to capital improvements still pending or in process of construction or acquisition.
COUNCIL ACTION ON BUDGET AND CAPITAL PROGRAM
Section 23-a. The Council shall publish in one or more newspapers of general circulation in the Town a general summary of the budget and a notice stating:
(1) The times and places where copies of the message and budget are available for inspection by the public, and
(2) The time and place, not less than 10 days after such publication, for a public hearing on the budget.
b. After the public hearing, the Council may adopt the budget with or without amendment. In amending the budget, it may add or increase programs or amounts and may delete or decrease any programs or amounts, except expenditures required by law or for debt service or for estimated cash deficit, provided that no amendment to the budget shall increase the authorized expenditures to an amount greater than the total of estimated income.
c. The budget shall be adopted by the Council on or before the first day of the last month of the fiscal year currently ending. If the Council fails to adopt the budget by this date, the amounts appropriated for current operation for the current fiscal year shall be deemed adopted for the ensuing fiscal year on a month-to-month basis, with all items in it prorated accordingly, until such time as the Council adopts a budget for the ensuing fiscal year. Adoption of the budget shall constitute appropriations of the amounts specified therein as expenditures from the funds indicated and shall constitute a levy of the tax on real estate and the per capita tax at the rate and in the amount therein proposed. If the budget has not been adopted by the above date, Council may thereafter separately levy said taxes at a rate and in an amount it deems appropriate.
d. The Council shall publish in one or more newspapers of general circulation in the Town the general summary of the capital program and a notice stating:
(1) The times and places where copies of the capital program are available for inspection by the public, and
(2) The time, place, not less than 10 days after such publication, for a public hearing on the capital program.
e. The Council by resolution shall adopt the capital program with or without amendment after the public hearing and on or before the first day of the last month of the current fiscal year.
f. The Council may, in its discretion, provide for a single public hearing on the budget and capital program.
g. Copies of the budget and the capital program as adopted shall be public records and shall be made available to the public at a suitable place in the Town.
AMENDMENTS TO BUDGET AFTER ADOPTION
Section 24-a. If during the fiscal year the Manager certifies that there are available for appropriation revenues in excess of those estimated in the budget, the Council by ordinance may make supplemental appropriations for the year up to the amount of such excesses.
b. To meet a public emergency affecting life, health, property or the public peace, the Council may make emergency appropriations. Such appropriations may be made by emergency ordinance in accordance with the provisions of Section 14-g. To the extent that there are no available unappropriated revenues to meet such appropriations, the Council may by such emergency ordinance authorize the issuance of emergency notes, which may be renewed from time to time, but the emergency notes and renewals of any fiscal year shall be paid not later than the last day of the fiscal year next succeeding that in which the emergency appropriation was made. No more than $50,000 may be borrowed pursuant to the provisions of this subsection.
c. If at any time during the fiscal year it appears probable to the Manager that the revenues available will be insufficient to meet the amount appropriated, he shall report to the Council without delay, indicating the estimated amount of the deficit, any remedial action taken by him and his recommendations as to any other steps to be taken. The Council shall then take such further action as it deems necessary to prevent or minimize any deficit and for that purpose it may by ordinance reduce one or more appropriations.
d. At any time during the fiscal year the Manager may transfer part or all of any unencumbered appropriation balance among programs within a department, office, or agency and, upon written request by the Manager, the Council may by ordinance transfer part or all of any unencumbered appropriation balance from one department, office or agency to another.
e. No appropriation for debt service may be reduced or transferred, and no appropriation may be reduced below any amount required by law to be appropriated or by more than the amount of the unencumbered balance thereof. The supplemental and emergency appropriations and reduction or transfer of appropriations authorized by this section, may be made effective immediately upon adoption.
LAPSE OF APPROPRIATIONS
Section 25. Every appropriation, except an appropriation for a capital expenditure, shall lapse at the close of the fiscal year to the extent that it has not been expended or encumbered. An appropriation for a capital expenditure shall continue in force until the purpose for which it was made has been accomplished or abandoned; the purpose of any such appropriation shall be deemed abandoned if three years pass without any disbursement from or encumbrance of the appropriation.
ADMINISTRATION OF BUDGET
Section 26-a. At such time as the Manager shall specify, each department, office or agency shall submit work programs for the ensuing fiscal year showing the requested allotments of its appropriation by periods within the year. The Manager shall review and authorize such allotments with or without revision as early as possible in the fiscal year. He may revise such allotments during the year if he deems it desirable and shall revise them to accord with any supplemental, emergency, reduced or transferred appropriations made pursuant to Section 24.
b. No payment shall be made or obligation incurred against any allotment or appropriation except in accordance with appropriations duly made and unless the Manager or his designee first certifies that there is a sufficient unencumbered balance in such allotment or appropriation and that sufficient funds therefrom are or will be available to cover the claim or meet the obligation when it becomes due and payable. Any authorization of payment or incurring of obligation in violation of the provisions of this charter shall be void and any payment so made illegal; such action shall be cause for removal of any officer who knowingly authorized or made such payment or incurred such obligation, and he shall also be liable to the Town for any amount so paid. However, except where prohibited by law, nothing in this charter shall be construed to prevent the making or authorizing of payments or making of contracts for capital improvements to be financed wholly or partly by the issuance of bonds or to prevent the making of any contract or lease providing for payments beyond the end of the fiscal year, provided that such action is made or approved as otherwise provided in this charter.
BORROWING OF MONEY AND ISSUANCE OF BONDS
Section 27-a. The Town of Middletown, under the restrictions hereinafter provided, may borrow for municipal purposes on the credit of the Town such sum or sums of money at such time or times as it may deem proper and issue bonds or other certificate or certificates of indebtedness for the payment of the same.
b. All bonds or other kinds or forms of certificate or certificates of indebtedness issued by the Town in pursuance hereof shall be exempt from all State, County or municipal taxes.
c. In those cases where the borrowing power is sought to be exercised for the purpose of refunding any or all outstanding bonds or other indebtedness of the Town at a rate of interest equal to or less than the indebtedness thereby sought to be refunded, or in accordance with the provisions of Sections 24-b, 28 and 29, it shall not be necessary for a special election to be held to secure approval of such borrowing.
In all other instances the power to borrow money and to secure the payment thereof by the issuance of bonds or other kinds or forms of certificate or certificates of indebtedness shall be exercised in the following manner:
(1) The Council shall enact a resolution proposing that money be borrowed by the Town. The resolution shall plainly set forth: (a) the amount of money, or the amount of money not exceeding which, it is proposed shall be borrowed, (b) the rate of interest, or the rate of interest not exceeding which, it is proposed shall be paid, (c) the manner in which it is proposed to be secured, (d) the manner in which it is proposed that it shall be paid, or funded, or both, (e) a short and clear description of the purpose or purposes for which the money or monies shall be used, which shall include the estimated cost of carrying out the purpose or purposes, (f) a statement as to the aggregate of all municipal indebtedness in the event the borrowing is approved, and (g) a statement of the time and place for a public hearing upon the resolution.
(2) The Town clerk shall give notice of the time and place of the public hearing upon the resolution by publishing a copy of the resolution aforesaid in at least one issue of a newspaper published in the Town at least one week before the time fixed for said hearing and by posting copies thereof in ten public places throughout the Town at least one week before the time fixed for said public hearing.
(3) At the time and place mentioned in the notice, the Council shall sit in public session and conduct a hearing upon the resolution.
(4) Immediately following the public hearing upon the resolution, the Council shall vote upon a resolution giving its final authorization for the loan. If such resolution shall be adopted by Council, then a second resolution shall be enacted ordering and directing that a special election be held in the Town of Middletown not less than 30 days nor more than 60 days (as may be determined by Council) after the passage of the resolution authorizing the loan.
(5) The purpose of the special election shall be to vote for or against the proposed loan.
(6) The Town clerk shall give notice of the time and place for holding the special election to all the taxables of the Town by posting notices thereof in ten public places in said Town at least two weeks prior to the day fixed for the holding of such special election, and by publishing a copy of such notice in a newspaper of the Town at least ten days before the election. Such notice of the special election shall contain the same information with respect to the borrowing as required to be contained in the original resolution proposing the borrowing, except that information relating to the public hearing.
(7) The special election shall be conducted by Judges of Election who shall be appointed in the same manner, and shall have the same qualifications, as provided in this charter for the regular Town election.
(8) The ballot to be used at the special election shall be in substantially the following form: upon one-half of the ballot shall be printed the words "FOR THE PROPOSED BORROWING," and upon the other half of the ballot shall be printed the words "AGAINST THE PROPOSED BORROWING," and a box shall be provided after each and the voter instructed to place an "X" in the box provided after the choice for which he wishes to cast his vote.
(9) At such special election every person who would be entitled to vote at a regular Town election if held on that day shall be entitled to one vote.
(0) Immediately upon the closing of the polls the Judges of Election shall count the votes for and against the proposed borrowing and shall announce the result thereof, and shall make a certificate under their hands of the number of votes cast for and the number of votes cast against the proposed borrowing and shall deliver such certificate, in duplicate, to the Town clerk. One copy of the certificate shall be entered in the minutes of the next meeting of Council and the other copy thereof shall be filed with the papers of the Town. If a majority of the votes cast be "FOR THE PROPOSED BORROWING," the Council shall have the authority to borrow the sum or sums or money and issue the bonds or certificates of indebtedness therefor.
d. The form of the bonds and certificates of indebtedness, the date of payment of interest, the classes, the dates of maturity and provisions pertaining to registration shall be determined by the Council. The bonds shall be sold to the best and most responsible bidder therefor.
All bonds or certificates of indebtedness forming a single issue need not be offered for sale but any given issue of bonds or certificates of indebtedness authorized as hereinbefore provided may be sold in whole or in part, from time to time and until the entire authorized issue be disposed of as the Council may deem most advisable.
The Council shall provide, in its budget, for revenues sufficient to pay the interest and principal on the said bonds or certificates of indebtedness at the maturity or maturities therefor. The faith and credit of the Town of Middletown shall be deemed pledged for the due payment of the principal and interest of general obligation bonds issued hereunder, within the debt limitation prescribed hereinafter, when the same have been properly executed and delivered for value.
BORROWING FOR CURRENT EXPENSES
Section 28. Whenever the needs of the Town shall require more money than is, at the time, in the Town treasury from current receipts, the Council shall be authorized and empowered to anticipate current revenue by borrowing such amounts as are needed. Provided, however, the amount of such indebtedness shall not at any time exceed the sum of $50,000.00.
To exercise the power aforesaid, the Council shall adopt a resolution to that effect, which resolution shall require the affirmative vote of at least two-thirds of all the members of the Council. The indebtedness created under this provision shall be evidenced by notes of the Town, and the faith and credit of the Town shall be deemed to be pledged thereby. Such short-term debt shall not be considered as part of the debt of the Town when limitations upon indebtedness, as set forth elsewhere in this charter, are computed.
INTERIM BORROWING FOLLOWING BOND ELECTION
Section 29. Subsequent to any bond election conducted in accordance with the provisions of Section 27 at which a majority of the votes cast be "FOR THE PROPOSED BORROWING," the Council shall be authorized and empowered to anticipate the funds to be obtained by the sale of bonds or certificates of indebtedness by borrowing such amounts as may be needed. Provided, however, the amount or amounts borrowed hereunder shall not exceed the amount of money, or the amount of money not exceeding which, the Town has been authorized to borrow at the bond election; nor shall the rate or rates of interest exceed the rate of interest, or the rate of interest not exceeding which, the Town has been authorized to pay at the bond election.
To exercise the power aforesaid the Council shall adopt a resolution to that effect, which resolution shall require the affirmative vote of at least two-thirds of all the members of the Council. The indebtedness created under this provision shall be evidenced by notes of the Town, and the faith and credit of the Town shall be deemed to be pledged thereby. Such interim debt shall be considered as part of the debt of the Town when limitations upon indebtedness, as set forth elsewhere in this charter, are computed.
LIMITATION UPON INDEBTEDNESS
Section 30. Except as otherwise provided in this charter, the indebtedness of the Town of Middletown, for any and all purposes and at any one time, shall not exceed, in the aggregate, fifteen per centum (15%) of the assessed value of all real property situate within the confines of the Town limits and subject to assessment for the purpose of levying the property tax as provided in Sections 31 and 32.
REVENUE AND SPECIAL ASSESSMENTS
Section 31-a. The Council shall have the power to levy and collect taxes on real property within the limits of the Town, except that which is not assessable and taxable by virtue of any law of the State of Delaware, and shall have the power to levy and collect a per-capita tax.
b. The Council shall have the power to levy and collect taxes upon all telephone, telegraph, power poles, pipe lines, rail lines or other constructions or erections of a like character erected within the limits of the Town, together with the wire or other appliances thereto or thereon attached. In case the owner or lessee of such constructions or erections, wires or other appliances shall refuse or neglect to pay the taxes levied thereon, in addition to all other remedies for the collection thereof, the Council shall have power and authority to cause the same to be removed.
c. The Council shall have the power and right to grant or refuse, and to tax and collect fees for licenses or permits for businesses of any description carried on within the limits of the Town, and to control their use of any property within the Town. The Council shall also have the power to grant franchises for such periods of time, upon such terms, restrictions, stipulations and conditions, and for such purposes and considerations as it shall deem wise and shall have the power to levy and collect franchise fees.
d. The Council shall have the power by ordinance to fix the rates for general utility services sold or operated by the Town and to collect and utilize revenues from such utility services for the benefit of the Town.
e. The Town of Middletown is authorized and empowered to levy and collect special assessments upon property in a limited and determinable area for special benefits accruing to such property as a consequence of any municipal public work or improvement; and to provide for payment of all or any part of the cost of the work, service or improvement out of the proceeds of such special assessments.
f. The Council may allow discounts for early payment of taxes, and impose penalties mid forfeitures for tax delinquencies. The Council may also provide for the payment of special assessments, for whatever purpose levied, by installments.
BOARD OF ASSESSMENT
Section 32-a. There shall be a Board of Assessment of three members.
b. Any qualified voter of the Town, who has not been convicted of a crime involving moral turpitude, shall be eligible for the office of member of the Board of Assessment.
c. Council shall appoint the three members of the Board of Assessment. One such member shall be appointed for a term of three years, another member for a term of two years, and the third member for a term of one year. Upon expiration of the term of office of each member of the Board of Assessment, and yearly thereafter, Council shall appoint one member of the Board of Assessment to serve for a term of three years.
d. The office of a member of the Board of Assessment shall become vacant upon his death, resignation, removal from of in any manner authorized by law or forfeiture of his office.
e. A member of the Board of Assessment shall forfeit his office if he (1) lacks at any time during his term of office any qualification for the office prescribed by this charter or by laws. (2) violates any express prohibition of this charter, or (3) is convicted of a crime involving -moral turpitude.
f. A vacancy in the office of member of the Board of Assessment shall be filled by Council appointing a qualified person to serve the remainder of the unexpired term.
g. The compensation to be received by members of the Board of Assessment for the performance of their duties shall be fixed by Council. Members of the Board of Assessment shall receive their actual and necessary expenses incurred in the performance of their duties of office.
h. It shall be the duty of the Board of Assessment to make, cause to be made or adopt an assessment of real estate and persons subject to taxation situated within the Town and to perform such other duties in reference thereto as may be prescribed by this charter or, from time to time, by Council.
ASSESSMENT OF TAXES
Section 33-a. The Board of Assessment shall, prior to March 15 of each year, either (1) make or have made a valuation and assessment of all real estate within the Town, or (2) adopt the assessment of real estate within the Town as contained in the assessment rolls for New Castle County. In making, causing to be made or adopting any such assessment, the rules and exemptions now, and hereinafter from time to time, applicable by law to the making of the New Castle County assessment of real properties shall be applicable insofar as consistent with the provisions of this charter. All real estate shall be described with sufficient particularity to be identified. Real estate shall be assessed to the owner or owners if he or they be known. If the owner or owners of real estate cannot be ascertained, it may be assessed to "Owner Unknown." A mistake in the name of the owner or owners, or a wrong name, or an assessment to "Owner Unknown," shall not affect the validity of the assessment of any Town tax or other assessment based thereon.
b. The Board of Assessment shall also, prior to March 15 of each year, make a per-capita assessment of all citizens residing in the Town, above the age of eighteen years, including those not owning, as well as those owning, real estate within its limits.
c. The Board of Assessment, after making, causing to be made or adopting such annual assessments, shall, prior to March 15 of each year, deliver to the Council a list containing the names of all persons assessed and the amount of the assessment against each.
d. The annual assessment list shall be in such form as Council may, from time to time, by resolution direct; provided, the list shall distinguish the real and per-capita assessment of each person and be so arranged that the land, the improvements thereon, and the per-capita assessment shall appear separately.
In making its assessment, the Board of Assessment shall make its valuation accordingly.
e. The real estate of the several members of the Board of Assessment shall be assessed by the Council, except if the New Castle County assessment is adopted.
f. Immediately upon receiving the annual assessment list from the Board of Assessment, the Council shall cause full and complete duplicates or copies of the same to be hung up or otherwise made available at the Town offices, and such other places in the Town of Middletown as they may designate, there to remain for a period of not less than three days for public inspection and information. Except if the New Castle County assessment is adopted, appended to the list and also in five or more public places in said Town shall be posted notices advising all concerned that, on a certain day or days and at certain times designated there, the Council will hold a Court of Appeals to hear and determine appeals from said annual assessments, make corrections and add omissions. The decision of the Council, sitting as a Court of Appeals, shall be final and conclusive, and the Council shall revise and complete said assessment at such sitting. No councilman or the Mayor shall sit upon his own appeal, but the same shall be heard and determined by the other members of Council.
g. All the members of the Board of Assessment shall be present while the Council is sitting as a Court of Appeals and shall furnish the Council such information and answer such questions as the Council may require with respect to any assessment from which an appeal has been taken. The Council shall have authority to enforce their attendance by appropriate process.
LEVY OF TAXES
Section 34-a. The taxes on real estate and the per-capita taxes shall be levied by Council pursuant to Section 23.
b. Immediately after the taxes have been levied, the Council shall make or cause to be made, a full, true and correct annual tax list showing the amount of tax levied against all real estate and persons appropriate to be taxed hereunder. This list shall be known as the Annual Tax List of the Town of Middletown, and shall be in addition to the assessment list. It shall contain information as to the rate of tax upon real estate.
c. The Council shall cause to be delivered to the Town Manager a duplicate of said annual tax list, and the Town Manager shall immediately proceed to collect the taxes.
COLLECTION OF TAXES
Section 35-a. It shall be the duty of the Town Manager and his authorized delegates to proceed forthwith to collect the taxes on the duplicate of said annual tax list.
b. The provisions of Title 25, Chapter 29, Delaware Code of 1953, as amended, with reference to tax liens, shall be deemed and held to apply to all taxes laid and imposed by Council under the provisions of this charter.
c. From time to time, Council shall direct when and where the Town Manager and his authorized delegates shall sit for the purpose of receiving taxes. Notice of such time and place shall be posted in at least five (5) of the most public places in the Town of Middletown and shall be published in one or more newspapers of general circulation in the Town.
REMEDIES, POWERS AND METHODS
FOR COLLECTION OF TAXES, ASSESSMENTS
AND OTHER CHARGES DUE THE TOWN
Section 36-a. The Town Manager may recover the amount of any tax, assessment or other charge in an action of debt before the Alderman of the Town of Middletown, or Justice of the Peace in New Castle County, or before the Court of Common Pleas of New Castle County or Superior Court of New Castle County; and it shall be sufficient to set forth that the action is to recover a specified sum of money, being a tax, assessment or other charge assessed against the defendant and the time of assessing the same. The right of appeal shall be the same as in other civil actions. If judgment be rendered in favor of the Town Manager, he shall have an allowance for his reasonable trouble in attending to the suit, including counsel fees, not in excess of five percentum of the amount of taxes, assessments or other charges plus penalties and accrued interest, to be taxed by the Court in costs, and execution shall issue as in case of other judgments recovered.
b. At any time after the tax, assessment or other charge becomes due the Town, the Town Manager may notify, in writing, the person, firm or corporation by whom any taxable is employed that the tax, assessment or other charge of said employee is due and unpaid. The notice shall be signed by the Town Manager, shall contain the name of the taxable, the amount of the tax, assessment or other charge due with penalties and interest added, if any, and shall be accompanied by a copy of this subsection. Thereupon it shall be the duty of the employer to take from the wage, salary or other money then due the taxable the amount owing the Town, charge the same against him, and pay the same to the Town Manager within thirty (30) days. The Town Manager shall give to the employer a certificate of payment which shall be allowed in any suit or accounting between the employer and taxable. If the employer be notified as aforesaid and, having in his hands money belonging to the taxable, shall neglect or refuse to comply with the provisions hereof, such employer shall become personally liable for the amount of the tax, assessment or other charge, together with penalties and interest thereon, if any, of the persons as to whom notice was given, and the amount thereof may be recovered from such employer in an action of debt before the persons and courts specified in subsection a. This collection process shall be deemed in the nature of a garnishment proceeding.
c. In addition to all existing methods and authority for the collection of taxes or assessments due to the Town of Middletown, the following methods and authority are hereby established:
The Town of Middletown may file, or cause to be filed, a praecipe in the office of the Prothonotary of the Superior Court, in and for New Castle County, which shall contain the name of the person against whom the taxes or assessments sought to be collected were assessed, or if said persons are unknown, the words "Owner Unknown," and a copy of the bill or bills showing the amount of taxes or assessments due and the property against which the assessment was laid. The description of the property, as the same appears on the assessment rolls of New Castle County, shall be a sufficient identification and description of the property. Thereupon the Prothonotary shall make a record of the same on a Judgment Docket of the Superior Court against the property mentioned or described in the praecipe, which record shall consist of the following:
(1) The name of the person in whose name the assessment was made, and if unknown, the words "Owner Unknown."
(2) The description of the property as the same shall appear upon the assessment rolls as aforesaid.
(3) The year or years for which the taxes or assessments are due and payable.
(4) The date of the filing of such praecipe.
(5) The amount of the judgment, the same being the amount set forth in the praecipe.
Thereafter upon a praecipe for monition filed in the office of the Prothonotary by the Town of Middletown through the Town Manager or the Town legal officer, a monition shall be issued by the Prothonotary to the Sheriff of New Castle County, which monition shall briefly state the amount of the judgment for the taxes or assessments due and the years thereof, together with a brief description of the property upon which said taxes or assessments are a lien and the last-known name and address of the person or persons who are the owners of said property as reflected on the assessment rolls as aforesaid. A description of such property as the same shall appear on the assessment rolls as aforesaid shall be a sufficient description.
The monition shall be in substantially the following form:
To all persons having or claiming to have any title, interest or lien upon the within described premises, take warning that unless the judgment for the taxes or assessments stated herein is paid within 20 days after the date hereof or within such period of 20 days, evidence of the payment of taxes or assessments herein claimed shall be filed in the office of the Prothonotary, which evidence shall be in the form of a receipted bill or duplicate thereof, bearing date prior to the filing of the lien in the office of the Prothonotary for New Castle County, the Town of Middletown may proceed to sell the property herein mentioned or described for the purpose of collecting the judgment for the taxes or assessments herein stated.
Name of person in Description Year Amount
whose name property of or of
is assessed and Property Years Judgment
person's last-known address
The monition, or a copy thereof, shall be posted by the Sheriff upon some prominent place or part of the property against which said judgment for taxes or assessments is a lien, and the monition, or a copy thereof, shall be sent by registered or certified mail to the owner or owners thereof at his or their last-known address or addresses. The Sheriff shall make due and proper return of his proceeding under the monition to the Prothonotary, within 10 days after the posting of the monition and the mailing thereof.
Alias or pluries monition may issue upon like praecipe. The posting and mailing of such notice as herein required shall constitute notice to the owner or owners and all persons having any interest in said property.
At any time after the expiration of 20 days next following the return of the Sheriff upon such monition, unless before the expiration of the 20 days the judgment and costs on the judgment shall be paid or evidence of the payment of such taxes or assessments evidenced by a receipted bill or duplicate thereof bearing date therefor prior to the filing of the lien for record in the office of the Prothonotary, upon praecipe filed by the Town of Middletown, through the Town Manager or the Town legal officer, a writ of venditioni exponas shall issue out of the office of the Prothonotary directed to the Sheriff commanding the Sheriff to sell the property mentioned or described in the writ and make due return of his proceedings thereunder in the same manner as is now applicable with respect to similar writs of venditioni exponas issued out of the Superior Court. The property shall be described in the writ under the description thereof as it appears on the assessment rolls as aforesaid, and by metes and bounds where obtainable, but nothing herein shall be construed to invalidate a writ or sale pursuant thereto containing only the description as it appears on said assessment rolls or a writ bearing only a description by metes and bounds.
Said writ shall be substantially in the following form:
NEW CASTLE COUNTY )
STATE OF DELAWARE )
TO THE SHERIFF OF NEW CASTLE COUNTY GREETINGS
WHEREAS, by a Monition issued out of the Superior Court dated at Wilmington, the _________ day of _______ A.D. 19 ___, IT WAS COMMANDED that you should post the said Monition or copy thereof upon the real estate therein mentioned and described, should mail said Monition or copy thereof to the owner of the said real estate at his last known address, and make a return to the said Superior Court within ten days after said posting and mailing. That on the day of A.D. 19_____, you returned that a copy of the said Monition was posted on the real estate therein mentioned and described on the _____day of _____, A.D. 19 _____, and a copy of the said Monition was mailed by certified or registered mail to, being the person known to be the owner of said real estate, at, being the last-known address of said owner, on the _____day of _____, A.D. 19 ____ . We therefore now command you to expose to public sale, the real estate mentioned and described in said Monition as follows:
And that you should cause to be made as well a certain debt of Dollars ($) lawful money of the United States, which to the said Town of Middletown, a municipal corporation of the State of Delaware, is due and owing, as also the sum of Dollars ($ ) lawful money as aforesaid, for its costs, which it has sustained by the detaining of that debt, whereof the said was convicted as it appears of record and against which said property it is a lien;
And have you that money before the Judges of our Superior Court at Wilmington, on Monday, the ______day of _________ next, to render to the said Town of Middletown, a municipal corporation as aforesaid, for its debt and costs as aforesaid, and this writ:
WITNESSETH, the Honorable ________________
At Wilmington the ______day of __________, A.D. 19___.
Any real estate or interest therein sold under the provisions hereof shall vest in the purchaser all the right, title and interest of the person in whose name said property was assessed, or such "Unknown Owner," and/or all the right, title and interest of the person or persons who are the owners thereof, and likewise freed and discharged from any liens and encumbrances, dower or curtesy or statutory right, in the nature of a dower or curtesy, whether absolute or inchoate, in or to the real estate.
The Owner or such unknown owner of any such real estate sold pursuant to the provisions hereof or his legal representatives may redeem the same at any time within one year from the day the sale thereof is approved by the Court, by paying to the purchaser or his legal representatives, successors or assigns, the amount of the purchase price and fifteen per cent in addition thereto, together with all costs incurred in the cause; or if the purchaser or his legal representatives, successors or assigns, shall refuse to receive the same, or do not reside or cannot be found within the Town of Middletown, by paying said amount into said Court for the use of said purchaser, his legal representatives or assigns.
In the event the owner of said property or his legal representatives fail to redeem said property as herein provided, the purchaser of said property or his legal representatives, successors or assigns may present a petition to the Superior Court setting forth the appropriate facts in conformity with this subsection and pray that the Superior Court make an order directing the Sheriff, then in office, to execute, acknowledge and deliver a deed conveying title to the property to the petitioner; and thereupon the Superior Court shall have power, after a hearing upon the petition, to issue an order directing the Sheriff to execute, acknowledge and deliver a deed as prayed for in the petition. A description of the property as the same shall appear upon the assessment rolls, as aforesaid, and a description by metes and bounds where obtainable shall be a sufficient description in any such deed.
If the owner of any real estate sold under an order of sale or his legal representative shall redeem the real estate, he may present to the Superior Court a petition setting forth that fact and thereupon the Superior Court, after hearing and determining the facts set forth in the petition, shall have power to cause to be entered upon the record of the judgment, under which the real estate was sold, a memorandum that the real estate described in the proceedings upon which the judgment was entered has been redeemed. Thereafter the owner shall hold such redeemed real estate subject to the same liens and in the same order of priority as they existed at the time of the sale thereof, excepting so far as the liens have been discharged or reduced by the application of the proceeds by the Sheriff from the sale.
Upon the return of the proceedings under a writ of venditioni exponas, the Superior Court may inquire into the regularity of the proceedings thereunder, and either approve the sale or set it aside.
No proceedings shall be brought hereunder unless the tax or assessment sought to be collected shall at the time of the filing of the praecipe in the office of the Prothonotary be and constitute a lien upon the property against which the tax or assessment was assessed or laid.
Wherever the Superior Court is mentioned in this subsection, the same shall be held to embrace the Judges or any Judge thereof, and any act required or authorized to be done hereunder may be done by the said Superior Court or any Judge thereof in vacation thereof, as well as in term time.
The fees and costs to be taxed in all proceedings under this subsection where not otherwise provided for, shall be as follows: The following fees shall be charged by the Prothonotary:
Filing Praecipe $1.10
Issuing Monition and copies 3.00
Issuing Alias or Pluries, Monition and copy 3.00
Writ of Venditioni Exponas 2.25
Filing any Petition in Superior Court under this
Costs of paying money into Superior Court 1.00
Costs of paying money out of Superior Court for each
check drawn 1.00
The following fees shall be charged by the Sheriff :
Posting Monition or copy thereof $.75
Posting each Alias or Pluries Monition or
copy thereof .75
Mailing Monition or copy thereof 1.00
All other charges by the Prothonotary and the Sheriff which are not covered by this subsection shall be the same as are now provided by law. In addition, the Town of Middletown shall be entitled to receive a sum corresponding to fifteen per centum of the amount of the judgment for its services in preparing, or causing to be prepared, such papers as are necessary in the premises, which sum shall be a part of the costs to be charged the purchaser in connection with the sale of said real estate sold for taxes or assessments.
Section 37-a. There shall be a Planning Commission consisting of five members, to be appointed by the Mayor, subject to confirmation by the Town Council. The members shall be appointed for terms of such length and so arranged as are consistent with the laws of the State of Delaware. The commission shall elect annually, a chairman and a secretary from among its members, and may employ experts, clerical and other assistants.
b. The powers and duties of the Planning Commission shall be coextensive with, and correspond to, those provided by the laws of the State of Delaware for planning commissions of incorporated cities and towns.
c. To the extent permitted under the laws of the State of Delaware, the Town may enact, by ordinance, appropriate subdivision regulations to be administered and applied by the Planning Commission.
NOMINATIONS AND ELECTIONS
Section 38-a. The regular Town election shall be held on the first Monday in March in each year between the hours of 1:00 P.M. and 8:00 P.M.
b. At any such election every person, male or female, who shall have reached the age of eighteen years, who is a citizen of the United States, who shall have been a freeholder in the Town of Middletown for a period of at least 30 days immediately preceding such election, against whose property there shall be no due and unpaid taxes, assessed or charged against such property or properties during the fiscal year ending on June 30th preceding such election, and who has satisfied requirements for registration prescribed in this section shall be entitled to vote; and in the alternative, every person who shall have reached the age of eighteen years, who is a citizen of the United States, who shall have been a resident of the State of Delaware at least 30 days, and who shall have been a bona fide resident within the corporate limits of the Town of Middletown for at least 30 days immediately preceding such election, and who has satisfied requirements for registration prescribed in this section shall be entitled to vote at regular Town election.
c. The Council shall by ordinance provide for the registration of voters and may prescribe registration and voting places, provided there shall be at least three registration days per year, one not more than 21 days prior to the regular Town election. The hours of registration shall be as provided by ordinance and the ordinance may provide for permanent registration lists.
d. At least 10 days previous to the regular Town election, three qualified voters of the Town shall be appointed Judges of Election by Council. The Judges of Election shall conduct the election, shall decide on the legality of the votes offered and shall ascertain the results of the election. Upon the close of the election, the votes shall be read and counted, and the persons having the highest number of votes, subject to the provisions of subsection 1 shall be declared elected.
Immediately after the election, said Judges of Election shall enter in a book to be provided for that purpose, a minute of such election, containing the names of all persons who were candidates for office, designating the office for which they were candidates and showing the number of votes received by each, and they shall subscribe to the same and deliver said book to the Council. Said book shall be evidence in any Court of Law or Equity. The Judges of Election shall also give to the persons so elected certificates of their election.
For the conduct of Town elections, for the prevention of fraud in such elections and for the recount of ballots in cases of doubt or fraud, the Town shall enact by ordinance all regulations which it considers desirable, consistent with law and this charter.
e. Any qualified voter of the Town may, upon his own application, become a candidate for the Town Council or Mayor, upon filing with the Town clerk written notice of his candidacy not earlier than 90 days or later than 30 days before the election.
f. Within seven days after filing written notice of candidacy, the Town clerk shall notify the person whether or not he is qualified to become a candidate for the Town Council or Mayor. If a person is found unqualified, the Town clerk shall so advise him in writing with a statement certifying wherein he is unqualified. The Town clerk shall keep on file all written notices of candidacy and copies of replies thereto.
g. The full names of all candidates for membership in the Town Council and for the office of Mayor except those who have withdrawn within 21 days prior to the election, died or become ineligible, shall be printed on the official ballot without party designation or symbol. If two or more candidates have the same surname or surnames so similar as to be likely to cause confusion, their residence address shall be printed with their names on the ballot.
h. The names of the candidates shall be arranged in the alphabetical order of their surnames.
. A candidate shall be entitled, upon written application to the Town clerk at least five days before the election, to appoint two persons to represent him as watchers and challengers at each polling place where voters may cast their ballots for him. A person so appointed shall have all the rights and privileges prescribed for watchers and challengers by or under the general election laws of the State of Delaware. The watchers and challengers may exercise their rights throughout the voting and until the ballots have been counted.
j. Every voter shall be entitled to vote for as many candidates for the Town Council as there are members to be elected to the Council. Every voter shall be entitled to one vote for Mayor.
k. The candidate for Mayor receiving the highest number of votes shall be declared elected. Candidates for election as councilmen shall be declared elected pursuant to the provisions of Section 5.
l. Any ordinance or charter amendment to be voted on by the Town shall be presented for voting by ballot title. The ballot title of a measure may differ from its legal title and shall be a clear, concise statement describing the substance of the measure without argument or prejudice. Below the ballot title shall appear the following question: "Shall the above described (ordinance) (amendment) be adopted?" Immediately below such question shall appear, in the following order, the words "yes" and "no" and to the left of each a square in which by making a cross (X) the voter may cast his vote.
m. If for any purpose relating to a general or Town election or to candidates or issues involved in such an election, any organization, group or person requests a list of qualified voters of the Town, the department, office or agency which has custody of that list shall either permit the organization, group or person to copy the voters' names and addresses from the list or furnish a copy of the list.
INITIATIVE AND REFERENDUM
Section 39-a. The qualified voters of the Town shall have power to propose ordinances to the Council and, if the Council fails to adopt an ordinance so proposed without any change in substance, to adopt or reject it at a Town election, provided that such power shall not extend to the budget or capital program or any ordinance relating to appropriation of money, levy of taxes or salaries of Town officers or employees.
b. The qualified voters of the Town shall also have power to require reconsideration by the Council of any adopted ordinance and, if the Council fails to repeal an ordinance so reconsidered, to approve or reject it at a Town election, provided that such power shall not extend to the budget or capital program or any emergency ordinance or ordinance relating to appropriation of money or levy of taxes.
c. Any 10 qualified voters may commence initiative or referendum proceedings by filing with the Town clerk an affidavit stating they will constitute the petitioners' committee and be responsible for circulating the petition and filing it in proper form, stating their names and addresses and specifying the address to which all notices to the committee are to be sent, and setting out in full the proposed initiative ordinance or citing the ordinance sought to be reconsidered.
Promptly after the affidavit of the petitioners' committee is filed the clerk shall issue the appropriate petition blanks to the petitioners' committee.
d. Initiative and referendum petitions must be signed by qualified voters of the Town equal in number to at least ten per centum (10%) of the total number of qualified voters registered to vote at the last regular Town election.
e. All papers of a petition shall be uniform in size and style and shall be assembled as one instrument for filing. Each signature shall be executed in ink or indelible pencil and shall be followed by the address of the person signing. Petitions shall contain or have attached thereto throughout their circulation the full text of the ordinance proposed or sought to be reconsidered.
f. Each paper of a petition shall have attached to it when filed an affidavit executed by the circulator thereof stating that he personally circulated the paper, the number of signatures thereon, that all the signatures were affixed in his presence, that he believes them to be the genuine signatures of the persons whose names they purport to be and that each signer had an opportunity before signing to read the full text of the ordinance proposed or sought to be reconsidered.
g. Referendum petitions must be filed within 30 days after adoption by the Council of the ordinance sought to be reconsidered.
h. Within 20 days after the petition is filed, the Town clerk shall complete a certificate as to its sufficiency, specifying, if it is insufficient, the particulars wherein it is defective and shall promptly send a copy of the certificate to the petitioners' committee by registered mail. A petition certified insufficient for lack of the required number of valid signatures may be amended once if the petitioners' committee files a notice of intention to amend it with the clerk within two days after receiving the copy of his certificate and files a supplementary petition upon additional papers within ten days after receiving the copy of such certificate. Such supplementary petition shall comply with the requirements of subsections e. and f. of this section, and within five days after it is filed the clerk shall complete a certificate as to the sufficiency of the petition as amended and promptly send a copy of such certificate to the petitioners' committee by registered mail as in the case of an original petition. If a petition or amended petition is certified sufficient, or if a petition or amended petition is certified insufficient and the petitioners' committee does not elect to amend or request Council review under subsection i. of this section within the time required, the clerk shall promptly present his certificate to the Council and the Certificate shall then be a final determination as to the sufficiency of the petition.
. If a petition has been certified insufficient and the petitioners' committee does not file notice of intention to amend it or if an amended petition has been certified insufficient, the committee may, within two days after receiving the copy of such certificate, file a request that it be reviewed by the Council. The Council shall review the certificate at its next meeting following the filing of such request and approve or disapprove it, and the Council's determination shall then be a final determination as to the sufficiency of the petition.
. A final determination as to the sufficiency of a petition shall be subject to review by the Superior Court. A final determination of insufficiency, even if sustained upon Court review, shall not prejudice the filing of a new petition for the same purpose.
k. When a referendum petition is filed with the Town clerk, the ordinance sought to be reconsidered shall be suspended from taking effect. Such suspension shall terminate when:
(1) There is a final determination of insufficiency of the petition, or
(2) The petitioners' committee withdraws the petition, or
(3) The Council repeals the ordinance, or
(4) Thirty days have elapsed after a vote of the Town on the ordinance.
1. When an initiative or referendum petition has been finally determined sufficient, the Council shall promptly consider the proposed initiative ordinance in the manner provided in Section 14 or reconsider the referred ordinance by voting its repeal. If the Council fails to adopt a proposed initiative ordinance without any change in substance within 60 days or fails to repeal the referred ordinance within 30 days after the date the petition was finally determined sufficient, it shall submit the proposed or referred ordinance to the voters of the Town.
m. The vote of the Town on a proposed or referred ordinance shall be held not less than 30 days and not later than one year from the date of the final Council vote thereon. If no regular Town election is to be held within the period prescribed in this subsection, the Council shall provide for a special election; otherwise, the vote shall be held at the same time as such regular election, except that the Council may in its discretion provide for a special election at an earlier date within the prescribed period. Copies of the proposed or referred ordinance shall be made available at the polls.
. An initiative or referendum petition may be withdrawn at any time prior to the fifteenth day preceding the day scheduled for a vote of the Town by filing with the Town clerk a request for withdrawal signed by at least four members of the petitioners' committee. Upon the filing of such request the petition shall have no further force or effect and all proceedings thereon shall be terminated.
a. If a majority of the qualified voters voting on a proposed initiative ordinance vote in its favor, it shall be considered adopted upon certification of the election results and shall be treated in all respects in the same manner as ordinances of the same kind adopted by the Council. If conflicting ordinances are approved at the same election, the one receiving the greatest number of affirmative votes shall prevail to the extent of such conflict.
p. If a majority of the qualified voters voting on a referred ordinance vote against it, it shall be considered repealed upon certification of the election results.
Section 40-a. The Mayor shall appoint, with the consent of Council, a person to the office of Alderman. The term of office of the Alderman shall be three years. He shall not be a member of Council.
b. The Alderman is hereby constituted a conservator of the peace within the Town and shall have jurisdiction and cognizance of all breaches of the peace and other offenses committed within said Town so far as to arrest and hold for bail, or fine and imprison offenders. He shall also have jurisdiction and cognizance of all fines and penalties prescribed by this charter, ordinances enacted hereunder, or any law of the State of Delaware; of all neglects, omissions or defaults of any officer or person whose duty it may be to collect, receive, pay over or account for any money belonging to said Town or to execute or obey any law or ordinance thereof. Provided that in the case of a violation of an ordinance, he shall impose no penalty or fine in excess of that fixed by the ordinance and shall not commit to prison for a period longer than 30 days a person who is in default in the payment of a fine imposed for violation of a Town ordinance.
As Alderman, he shall also have jurisdiction in suits of a civil nature for the collection of taxes, assessments, and other charges due the Town, and all other matters which may be conferred upon him under the provisions of this charter.
It shall be the duty of the Alderman to keep a book of record, or docket, to be provided by the Council, in which all his official acts shall be entered, and he shall upon the expiration of his term of office, deliver to his successor all the books and papers pertaining to his office within 10 days after the appointment of his successor and shall pay over to the Town all moneys in his hands belonging to the Town within five days after the expiration of his term; upon his neglect or failure to deliver to his successor in office within the time aforesaid all the books and papers belonging to his office or upon neglect or failure to pay over to the Town within the time aforesaid all moneys belonging to the Town, he shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than $100.00 nor more than $500.00.
c. The Alderman's compensation shall be such as may be set by ordinance duly enacted by Council; provided, however, that Council shall not change the amount of an Alderman's compensation or its manner of payment during the term of his office.
d. The Alderman shall be subject to removal from office at any time by a majority vote of Council.
e. All fines, forfeitures and taxes collected by the Alderman shall belong to the Town and its use. The Alderman at every regular meeting of Council shall report to it all fines and penalties imposed by him since the last meeting and pay to the Town all such fines, penalties and taxes received by him during such time and in default of making such report or paying such fines, penalties and taxes for a period of 20 days after such report should be made and such fines, penalties and taxes should be paid as aforesaid, he shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than $20.00 nor more than $50.00.
f. If any vacancy shall occur in the office of Alderman by death, resignation, removal from office, or otherwise, such vacancy may be filled by Council at any meeting thereafter for the residue of the term.
Section 41-a. There shall be a Police Department consisting of a Chief appointed pursuant to Section 18-b, and such number of subordinates as may be deemed wise.
b. The members of the Police Department shall preserve peace and order and shall compel obedience within the Town limits to the ordinances of the Town and the laws of the State, and they shall have such other duties as the Council shall from time to time prescribe.
c. Each member of the Police Department shall be vested with all the powers and authority of a Constable of New Castle County within the Town limits and within one mile outside said limits, and in case of pursuit of an offender his powers and authority shall be without territorial limitation.
ACQUISITION OF PROPERTY
Section 42. The Town of Middletown is hereby authorized and empowered, whenever it shall deem it necessary and expedient for any municipal purpose, to obtain and acquire property by purchase, gift, devise or lease within or without the boundaries of said Town and to obtain legal title to said property by appropriate conveyances. If the Town fails to reach an agreement with an owner or owners of real property, it shall have the power to take such real property by condemnation in the manner and according to the procedure as set forth in Title 10, Chapter 61, Delaware Code of 1953, as amended; provided, however, that the right of condemnation shall not extend to real property owned by the State of Delaware, New Castle County or any agency thereof, nor shall such right extend to real property situate without the boundaries of said Town.
Section 43-a. The Town of Middletown shall have the right to engage in any business or enterprise in which a person, firm or corporation might engage by virtue of a franchise, and shall have the right and power to acquire, own, maintain and operate, within or without the corporate limits of the Town, all real estate for municipal purposes for sites and rights or ways for public utility and general welfare purposes and for the location, erection, maintenance and operation thereon of municipal utility plants and public facilities.
b. In any case where the Council may deem it to be to the best interests of the people of the Town to acquire the properties of any privately owned utility or to grant franchises in accordance with Section 31-c within the present or future boundaries of the Town, the question shall be submitted to the qualified voters at a special election. The time and procedure for the election shall be determined by Council; provided, however, that a public hearing upon the question of acquisition shall be held by Council not less than two weeks prior to the election and Council shall provide at least 30 days' notice of the public hearing and election. In acquiring said utility property, the Town shall respect the franchise rights of the owners and in all respects adhere to the general laws of the State of Delaware insofar as they relate to the purchase of utility properties by municipalities. The Council shall be authorized to negotiate the aforementioned purchase only after a majority of votes at the special election have been cast in favor of the acquisition.
EXTENSION OF UTILITY SERVICES
OUTSIDE TOWN LIMITS
Section 44. The Town of Middletown shall have the right and power to furnish, or refuse to furnish, utilities from any Town system to places and properties outside the Town limits and shall have the right and power to distribute, or refuse to distribute, to users without the Town limits any utility services which have been contracted for and purchased by the Town, with the same full powers as though the subjects of such services had been initially reduced to usefulness, or provided by the facilities therefor, of the municipal corporation itself.
CONTROL OF STREETS AND OTHER PUBLIC WAYS
Section 45-a The Council shall have the power and authority to locate, lay out and open new streets and other public ways and to widen, alter, vacate or abandon streets or other public ways, or parts thereof, whenever it is deemed in the best interest of the Town.
b. The procedure in every case as aforesaid shall be as follows:
(1) The Council shall adopt a resolution favorable to the opening of a new street or other public way or to the widening, altering, vacating or abandoning of a street or other public way, or any part thereof, as the case may be. The resolution shall give a general description of the street or other public way to be opened, widened or altered, or of the street or other public way, or part thereof, to be vacated or abandoned, as the case may be. The resolution shall also state the day, hour and place where the Council will sit to hear objections and to award just and reasonable compensation to anyone who will be deprived of his property by reason thereof.
(2) Copies of such resolution shall be posted in at least five public places in the Town and at least five days prior to the date fixed by Council for the hearings as aforesaid.
(3) At the time and place fixed in the resolution, the Council shall hear such residents of the Town or owners of the property affected as shall attend, and the Council shall at said hearing, or at a subsequent day as Council shall deem proper, adopt a resolution to proceed with or to abandon, as shall be deemed for the best interest of the Town, the opening of the street or other public way or the widening, altering, vacating or abandoning of the street or other public way, or part thereof, as the case may be, as contemplated in the prior resolution.
(4) In every case where the Council shall determine to proceed with the plan contemplated by the resolution first aforesaid, Council shall award just and reasonable compensation to anyone who will be deprived of property in consequence thereof pursuant to Section 42.
IMPROVEMENTS AND REPAIRS TO STREETS,
OTHER PUBLIC WAYS, CURBS AND GUTTERS
Section 46-a. Whenever Council shall deem it advisable that any street, other public way, curb or gutter be paved, re-paved, graveled, laid, reset or repaired, Council shall have the power to cause the same to be done with such materials and according to such specifications as it shall determine.
b. Before the exercise of said power in any particular instance, Council shall adopt a resolution stating that on a named day and at a named hour and place the Council will conduct a hearing to consider the questions of effecting the improvements or repairs in front of the properties of named owners and of assessing the cost thereof, in whole or in part, against the owners. The resolution shall be published in a newspaper of general circulation in the Town at least one week prior to the hearing and shall be mailed or delivered to the property owner or owners.
c. The Council shall hold a hearing in accordance with the resolution and there shall hear the aforesaid owners of property and other residents of the Town on the questions referred to in the resolution.
d. Thereafter, Council shall decide whether or not to proceed with the improvements or repairs referred to in the resolution.
e. If the Council shall decide to proceed, it shall determine by resolution whether the whole or some specified portion of the cost of the improvements or repairs shall be assessed to and borne by the property owner or owners in front of whose property the improvements or repairs are to be affected; provided, however, that Council shall not decide to assess the cost against such property owner or owners if he or they owning a majority of the entire lineal frontage of property in front of which the improvements or repairs are proposed sign a written petition which is filed with the Council at or before the hearing prescribed in subsection c. If Council shall determine that the whole or a specified proportion of the costs aforesaid shall be assessed to and borne by said property owner or owners, then he or they shall be compelled to pay the same, the proportionate amount of the cost to be paid by the owner or owners of each parcel of property affected being determined according to that lineal frontage of the parcel in front of which the improvements or repairs are proposed to be effected.
f. When such improvements or repairs have been completed and the costs thereof ascertained, Council shall ascertain and propose by resolution that amount which the owner or owners of each parcel of property aforesaid shall pay and shall propose the time and manner for such payment. The resolution shall contain a complete list of all properties to be assessed, setting forth that number of lineal feet of each parcel of property in front of which the improvements or repairs were affected, the owner or owners thereof, and the amount proposed to be finally assessed against such parcel and the owner or owners thereof.
g. A copy of the resolution fixing the amounts to be assessed against the affected properties and the owner or owners thereof shall be posted in the Town office of the Town for one week for public inspection. An advertisement stating the fact of such posting and the time and place where Council shall sit to hear objections to the proposed assessment shall be published in two successive issues of a newspaper of general circulation in the Town prior to the day fixed for hearing; and the hearing shall not be less than 10 days nor more than 20 days after the last publication of such advertisement. The hearing shall be in public, and Council shall hear and determine all objections to such proposed assessment as shall have been made by any party in interest in writing and filed with the Council at any time prior to the hour of such public hearing as fixed in the advertisement. The hearing may be adjourned from time to time until all objections have been heard and determined.
h. Upon determination of all objections, the Council shall by resolution finally determine the several amounts assessed against the affected properties and the owner or owners thereof and the time and manner for payment thereof.
i. Any assessment made hereunder shall be a lien upon the respective properties upon which any such assessment is levied and assessed as of the date of the final assessment resolution; and such lien shall have priority over all other liens, encumbrances or conveyances excepting only tax liens and prior assessments of like nature for public improvements.
j. Immediately after the final assessment resolution has been passed by Council, a duplicate thereof shall be delivered to the Town Manager, who shall immediately prepare statements of such assessments against each property so assessed, and shall mail, deliver or cause to be delivered to the person or persons whose names appear therein as the owner or owners of such property, or properties, respectively. Such statements of assessment shall contain or be accompanied by appropriate information in regard to the required time and manner of payment. The mailing of a statement to the last-known post office address of any person shall be a sufficient notice of such assessment.
k. The Town Manager or his duly authorized delegate shall forthwith proceed to collect the assessments, penalties and interest thereon, if any be due. If any owner shall refuse or neglect to pay any assessment or part thereof when due, the Town Manager shall proceed to collect the same in any of the manners provided for the collection of taxes, assessments and other charges due the Town as set forth in Section 36.
1. Assessments hereunder shall bear interest after such date as the Council may specify in the final assessment resolution.
m. The cost of improvements or repairs to any street or other public way, excepting a sidewalk, shall, if assessed to properties and owners hereunder, be assessed to properties and owners on both sides of such street or such other public way. The cost of improvements or repairs to gutters, curbs or sidewalks shall, if assessed to properties and owners hereunder, be assessed only to properties and owners abutting, adjacent to or directly fronting upon such gutters, curbs or sidewalks.
INSTALLATION AND CONNECTION OF SEWERS, MAINS,
PIPES, LINES, WIRES AND OTHER CONVEYANCES
Section 47. The Council may cause any private property in the Town to be connected with sewers, mains, pipes, lines, wires and other conveyances for the passage and disposal of sewerage or the transmission and distribution of water, gas or electric current and may recover the costs of installing and connecting the same in the like proceedings as provided in Section 46 for improvements and repairs to streets, other public ways, curbs and gutters.
REFERRAL TO PLANNING COMMISSION
Section 48. The Council shall not enact any ordinance or resolution which shall in any manner affect any comprehensive development plan, official map or land subdivision plans or any ordinance or resolution which would authorize the acquisition or sale of real estate by the Town without first receiving the recommendation thereon of the Planning Commission.
LIMITATION OF ACTION FOR DAMAGES
Section 49. No action, suit, or proceedings shall be brought, commenced or maintained against the Town of Middletown for damages on account of physical injuries, death or injury to property by reason of the negligence of the said Town or any of its elected or appointed officials, departments, officers, agents, servants or employees, unless the person by or on behalf of whom such claim or demand is asserted shall notify the Town Council in writing of the time, place, cause and character of the injuries sustained within 90 days thereof.
PERSONAL FINANCIAL INTEREST
Section 50. Any Town officer or employee who has a substantial financial interest, direct or indirect or by reason of ownership of stock in any corporation, in any contract with the Town or in the sale of any land, material, supplies or services to the Town or to a contractor supplying the Town shall make known that interest and shall refrain from voting upon or otherwise participating in his capacity as a Town officer or employee in the making of such sale or in the making or performance of such contract. Any Town officer or employee who willfully conceals such a substantial financial interest or willfully violates the requirements of this section shall be guilty of malfeasance in office or position and shall forfeit his office or position. Violation of this section with the knowledge express or implied of the person or corporation contracting with or making a sale to the Town shall render the contract or sale voidable by Council.
Section 51-a No person shall be appointed to or removed from, or in any way favored or discriminated against with respect to any Town position or appointive Town administrative office because of race, sex, political or religious opinions or affiliations.
b. No person shall willfully make any false statement, certificate, mark, rating or report in regard to any test, certification or appointment under the personnel provisions of this charter or the rules and regulations made thereunder, or in any manner commit or attempt to commit any fraud preventing the impartial execution of such provisions, rules and regulations.
c. No person who seeks appointment or promotion with respect to any Town position or appointive Town administrative office shall directly or indirectly give, render or pay any money, service or other valuable thing to any person for in connection with his test, appointment, proposed appointment, promotion or proposed promotion.
d. No person shall orally, by letter, or otherwise solicit or assist in soliciting any assessment, subscription or contribution for any political party or political purpose whatever from any person holding any compensated appointive Town position.
e. No person who holds any compensated appointive Town position shall make, solicit or receive any contribution to the campaign funds of any political party or any candidate for public office or take part in the management, affairs or political campaign of any political party, but he may exercise his rights as a citizen to express his opinions and to cast his vote.
f. Any person who by himself or with others willfully violates any of the provisions of subsections a through d shall be guilty of a misdemeanor and upon conviction thereof shall be punishable by a fine of not more than $500 or by imprisonment for not more than 30 days, or both. Any person who by himself or with others willfully violates any of the provisions of subsection e shall be guilty of an offense and upon conviction thereof shall be punishable by a fine of not more than $100. Any person convicted under this section shall be ineligible for a period of five years thereafter to hold any Town office or position, and, if an officer or employee of the Town, shall immediately forfeit his office or position.
Section 52. If any provision of this charter is held invalid, the other provisions of the charter shall not be affected thereby. If the application of the charter or any of its provisions to any person or circumstance is held invalid, the application of the charter and its provisions to other persons and circumstances shall not be affected thereby.
Section 53. This Act shall be deemed and taken to be a Public Act of the State of Delaware.
Section 54-a. The Mayor and Councilmen of Middletown presently in office shall continue in office until their successors are elected and qualify as provided for in this charter, but with the rights, powers, duties and obligations as set forth in this charter.
b. Any person holding any non-elective office or employment under the Town of Middletown at the time this charter goes into effect shall continue in such office or employment and shall draw the same rate of compensation as during the month preceding the adoption of this charter until removed or until the compensation is changed. Any person holding such office or employment at the time this charter goes into effect, who continues in a comparable position thereafter, shall not be subject to competitive tests as a condition of continuance but in all other respects shall be subject to the personnel system provided for in Section 19.
. All ordinances, resolutions, orders, rules or regulations in force in the Town of Middletown at the time this charter takes effect, regardless of the authority under which originally enacted, shall continue in full force and effect until the Council otherwise provides by ordinance, notwithstanding any change in organization effected by this charter.
a. All rights, claims, actions, orders, contracts and legal and administrative proceedings at the time this charter takes effect, except as modified pursuant to the provisions of this charter, shall continue and in each case shall be maintained, carried on or dealt with by the Town department, office or agency appropriate under this charter.
Section 55-a This charter of the Town of Middletown or any section or provision thereof shall not take effect or be deemed to have changed or altered in any respect whatever any existing law or laws of the State of Delaware until it shall have been approved by the electors residing within the metes and bounds of the Town of Middletown as described in Section 3.
b. No later than 21 days following the approval of this Act by the Governor, the Mayor and Councilmen of Middletown now in office shall by resolution propose to the electors of the Town of Middletown the approval of this charter. The resolution as passed shall fix a time and place for a public hearing on the said resolution.
c. Notice of the time and place of the said public hearing shall be posted in at least ten public places within the Town at least two weeks prior to the date of the public hearing and shall be published in one or more newspapers of general circulation in the Town once a week for two successive weeks.
. After the public hearing, a second resolution shall then be passed by the Mayor and Councilmen, as aforesaid, ordering a special election to be held not less than 30 days nor more than 60 days following the date of the public hearing for the purpose of voting for or against the approval of the charter.
. Notice of the time and place of holding the special election shall be posted in at least ten public places within the Town at least two weeks prior to the date of the election and shall be published in one or more newspapers of general circulation in the Town once a week for two successive weeks.
. The special election shall be held by an Election Board consisting of three citizens residing in the Town, not Councilmen or the Mayor, appointed by the Mayor and approved by Council.
. At the special election, every citizen residing within the limits of the Town of Middletown as described in Section 3 who was eligible to vote at the last general municipal election shall be entitled to vote. In addition, every citizen who has become eligible to vote in a general municipal election since the time of the last such election shall be entitled to vote at the special election unless the fact of such eligibility occurs within less than 10 days prior to the special election. Each voter shall be entitled to one vote.
a. The polls for the said special election shall be open between the hours 8:00 a.m. and 7:30 p.m. on the day advertised.
. The vote shall be by ballot on which is printed or written the following :
____ FOR APPROVAL OF THE NEW CHARTER
_____ AGAINST APPROVAL OF THE NEW CHARTER
j. Any eligible voter who for any reason cannot appear to vote in person at the special election shall be permitted to cast an absentee ballot by mail. The Mayor and Council shall make fair and adequate provision for the casting of such ballots, and notice thereof shall be included in the posted and published notice pursuant to subsection e.
k. If the majority of the votes cast at the special election shall be in favor of approval of this charter, the Election Board shall so certify and thereupon declare this charter to be in full force and effect. If less than the majority of votes cast at the special election shall be in favor of approval of this charter, the Election Board shall so certify and declare that this charter is rejected.
Approved February 5, 1974.