CHAPTER 282

FORMERLY

HOUSE BILL NO. 405

AS AMENDED BY HOUSE AMENDMENT NO. 2

AND SENATE AMENDMENTS NO. 1 AND 2

AN ACT TO AMEND CHAPTER 43, TITLE 9 OF THE DELAWARE CODE RELATING TO KENT COUNTY EMPLOYEES' RETIREMENT BENEFITS.

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

Section 1. Amend §4302, Chapter 43, Title 9 of the Delaware Code, to read as follows:

§4302. Definitions

(a) "Covered employee" means an employee who receives a regular salary or wages wholly or in part directly or indirectly from Kent County; provided, however, that an employee shall not be considered in covered employment if he is a part-time or seasonal employee who is not regularly employed for more than 120 working days in any one calendar year.

(b) The following persons shall be considered "covered employees" notwithstanding other provisions of this section:

(1) elected officials of Kent County;

(2) Justices of the Peace and Constables, for time spent prior to March 31, 1965;

(3) attorneys at law regularly employed by Kent County and paid a monthly or annual salary, provided that any compensation paid an attorney other than as salary shall not be counted in computing the benefits under this Chapter.

(c) A covered employee who shall have been employed by Kent County for at least six months shall be considered totally disabled if he is under the regular care of a licensed physician or Christian Science Practitioner and completely unable to engage in a regular occupation or employment during the first 24 months of a period of total disability. An employee shall be considered totally disabled after the first 24 months of a period of total disability if he is completely unable to engage in any and every gainful occupation or employment for which he is or becomes reasonably fitted by education, training or experience.

(d) "Vested portion of the pension" means that portion of the pension benefits provided for by this Chapter which a covered employee is entitled to receive pursuant to the provisions of §4321 of this Title.

(e) "Continuous employment" means service without interruption except allowable interruptions aggregating not more than five years.

(f) "Allowable interruptions" means interruptions arising from:

(1) disability as defined in this Chapter ;

(2)leaves of absence granted to employees;

(3) leaves of absence for entering the Armed Services of the United States of America as provided in' §4304 of this Title;

(4) involuntary severance of employment not due to any fault or neglect on the part of such employee; or

(5) voluntary severance of employment for a period not to exceed one year ; but the employee shall not be considered a covered employee during any period of such interruption. The usual vacation allowed any employee of any department or agency shall not be considered an interruption from continuous employment.

Section 2. Amend §4303, Chapter 43, Title 9 of the Delaware Code, to read as follows:

§4303. Eligibility for retirement benefits; reduction because of other benefits

(a) A covered employee who shall have service with Kent County in continuous employment for at least three years shall be considered eligible for retirement benefits within the Meaning of this Chapter, except as otherwise provided.

(b) Any employee who is eligible for retirement benefits under the provisions of this Chapter and who is or will be covered by any other state or county pension plan or statute shall have his retirement payments reduced by such amount as he receives from the other pension plan or statute.

Section 3. Amend §4305, Chapter 43, Title 9 of the Delaware Code, to read as follows:

§4305. Retirement age; early retirement; mandatory retirement

(a) Every covered employee who is eligible for retirement benefits under this Chapter may be retired after such employee attains the age of 65 years (or 60 years as hereinafter provided), and shall, after retirement and during the remainder of his life, receive the vested portion of the pension fixed by this Chapter, subject to such qualifications and reservations as are contained in this Chapter.

(b) A covered employee who is eligible for retirement benefits under this Chapter may select early retirement after serving in covered employment with Kent County for at least 15 years and attaining the age of 60 years. He shall, after such early retirement and during the remainder of his life, receive the vested portion of the pension provided by this Chapter.

(c) Nothing in this Chapter shall be construed to make mandatory the retirement of any employee who is not a "covered employee" as such term is defined in this Chapter or who is ineligible to receive a pension because he has not worked the required number of years, except as is specifically authorized in this Chapter to the contrary.

(d) Notwithstanding the other provisions of this section, a covered employee may continue active work by mutual consent on a year-to-year basis at the option of the department or agency by which they are employed. If an employee continues to be employed by Kent County beyond age 65, each such additional year shall be credited toward his retirement but no such credits shall be accumulated beyond age 70.

§4306. Retirement pension benefits

(a) The monthly pension payable shall be 11/2 percent of the average monthly salary of the highest three consecutive years of service with Kent County multiplied by the number of years which a covered employee shall have served in covered employment with Kent County or in similar employment with New Castle or Sussex Counties or the State of Delaware.

Section 5. Amend §4307, Chapter 43, Title 9 of the Delaware Code, to read as follows:

§4307. Disability

(a) A covered employee who shall become disabled while in covered employment and covered under Kent County Disability Insurance, shall be kept on the active payroll during the remainder of the calendar month in which such disability shall begin, and within the next ensuing six months.

(b) At the end of the sixth calendar month after becoming disabled, if the employee qualifies for Kent County Disability Insurance and receives benefits from such disability insurance, he shall be considered for retirement purposes a covered employee. Upon attaining age 65 the disabled employee will become eligible for retirement on pension in accordance with this Chapter.

Section 6. Amend §4308 (a), Chapter 43, Title 9 of the Delaware Code, by inserting the words "date of birth, date of hire" after the words "which shall contain the names, address" and before the words "and amounts for those employees" as those words appear therein.

Section 7. Amend Chapter 43, Title 9 of the Delaware Code, by adding thereto the following sections:

§4318. Funding

(a) The Levy Court shall establish a Pension Fund which shall be used only for the purpose of paying the benefits provided for under this Chapter.

(b) An actuary shall at least annually review the Pension Fund and shall report to the Levy Court whether any additional sums of money are needed to keep the Pension Fund actuarially sound so that sufficient funds will always be available to pay the benefits provided for under this Chapter.

(c) The Levy Court shall annually appropriate to the Pension Fund such sums as the actuary deems necessary to properly maintain the Fund.

§4319. Trustee

(a) The Levy Court may select a trustee to administer and invest the moneys in the Pension Fund who:

(1) may collect such sums as shall be paid to the trustee under the plan ;

(2) shall pay benefits from a fund as directed by the Levy Court and shall be fully 'protected in doing so;

(3) shall keep account of all transactions which shall be opened to inspection and audited by persons designated by the Levy Court; and

(4) shall not be liable for any loss to the Fund or any act done or omitted by it unless due to its own negligence, willful misconduct or lack of good faith.

(b) The trustee acting as a prudent man shall in its discretion invest principal and accumulated income without restriction to legal investments and without distinction between principal and income. The trustee may hold investments in nominee or bearer.

(c) The Levy Court may amend or terminate its contract with a trustee provided that the amendments affecting the trustee shall require its consent and no termination or amendment shall divert any part of the Fund to any purpose other than the exclusive benefit of employees or their beneficiaries, and no amendment shall divest any vested benefit.

(d) The trustee shall be compensated in accordance with its schedule of rates in effect from time to time during the period in which its services are rendered and as agreed to by the Levy Court and the trustee.

(e) Within 90 days after each plan or upon its removal or resignation, the trustee shall file with the Levy Court an account of its administration of the Fund during such year or for the end of the preceding plan year to the date of removal or resignation. Neither the Levy Court nor any other person shall be entitled to any further accounting by trustee.

(f) The trustee may resign by written notice to the Levy Court which shall be effective 60 days after delivery. The trustee may be removed by the Levy Court by written notice to the trustee which shall be effective 60 days after delivery. On resignation or removal, trustee shall deliver the funds to its successor as soon as notified in writing by the Levy Court that a successor has been named provided that this shall not waive any liens the trustee may have upon the Fund for its compensation or expenses.

§4320. Voluntary contributions

(a) Any covered employee employed by Kent County may elect to make voluntary contributions not to exceed 10 percent of their annual salary.

(b) Each year that the employee desires to make voluntary contributions he shall enter into an agreement with the Treasurer of Kent County authorizing the withholding of the contributions. The Treasurer shall then contribute to the plan for such employee the amount set forth in the application.

(c) Upon 90 days' notice to the County Treasurer and trustee, a voluntary contribution participant may withdraw at the end of the plan year all of the lesser of the following portion of his Voluntary Benefit Account:

(1) the aggregate amount of his contributions but not including any earnings (including capital appreciation thereon; or

(2) the value of his Voluntary Benefit Account as determined by the trustee.

(d) In addition to the withdrawals permitted by this section, an employee may withdraw from his Voluntary Benefit Account the earnings on such contributions.

(e) A covered employee electing to withdraw his contributions shall not thereafter be permitted to make voluntary contributions for a period of one year.

(f) The notice required to be given to the County Treasurer and trustee shall be in writing and shall specify whether contributions or the total account including earnings shall be withdrawn. All voluntary contributions and earnings thereon shall be 100 percent vested in the employee. All withdrawal payments shall be made within 90 days after the end of the plan year.

§4321. Vested right to benefits

(a) A covered employee who shall have service with Kent County in continuous employment for at least three years shall have a vested right to the benefits provided under this Chapter when the sum of his age and years of continuous employment with Kent County equal at least 50.

(b) During the first 12 months that an employee has a vested right to benefits under this Chapter, his benefits under this Chapter shall be limited to 50 percent of the amount of payments he is otherwise eligible to receive. For each additional 12 months that an employee is in covered employment the benefits which he shall be eligible for shall increase by 10 percent up to a maximum of 100 percent.

(c) Once acquiring a vested right to benefits, an employee shall not lose his right to retirement benefits at age 60 or 65, as the case may be, by reason of leaving county employment except as provided in §4322 of this Title.

(d) The provisions of this section shall apply only to those employees who are employees of Kent County on or after May 1, 1973.

§4322. Forfeitures for cause

(a) In the event that a covered employee resigns or is discharged by the county because he has been guilty of committing a felony or causing the county to be placed in violation of the law, the Arbitration Commission of Levy Court shall have the power to terminate all rights of the employee and all persons claiming benefits through him under this Chapter.

§4323. Effect of amendments

If a covered employee who is employed at the time an amendment of this Chapter becomes effective would have received a greater benefit or been eligible for an earlier retirement, under the law in effect prior to the amendment, he shall be paid and retired under the earlier law, at his option.

Section 8. Amend §4309, Chapter 43, Title 9 of the Delaware Code, by adding thereto a new subsection which shall read as follows:

(c) A covered employee may, with the consent of the Levy Court of Kent County, elect in writing one of the following optional forms of retirement benefits:

(1) a lump sum;

(2) an annuity payable in equal monthly installments for life;

(3) a joint and survivor annuity payable in equal monthly installments during the life of the employee and after his death to his spouse or other annuitants in monthly installments either in the same amount or lesser amount;

(4) an annuity payable in equal monthly installments for the life of the participant and for a period of 10 years certain;

(5) an annuity payable in equal monthly installments for the life of the participant and for a period of five years certain; or

(6) any other form of benefit approved by the Levy Court. Should an employee fail to elect a form of settlement the employee shall receive an annuity payable in equal monthly installments for life.

Section 9. Amend §4310 (a), Chapter 43, Title 9 of the Delaware Code, by striking the words and figures "30 days" as they appear therein and inserting in lieu thereof the words and figures "90 days".

Section 10. Amend §4314, Chapter 43, Title 9 of the Delaware Code, by striking said subsection in its entirety.

Approved March 27, 1974.