CHAPTER 251

FORMERLY

SENATE BILL NO. 487

AN ACT TO AMEND PARTS II AND IV, TITLE 11, DELAWARE CODE, AND PART VIII, TITLE 29, DELAWARE CODE, RELATING TO STATE GOVERNMENT, PROVIDING FOR THE TRANSFER OF POWERS, DUTIES AND FUNCTIONS OF THE DIVISION OF CORRECTIONS OF THE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, AND PROVIDING FOR ESTABLISHMENT OF A SEPARATE DEPARTMENT OF CORRECTION.

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

Section 1. Amend §7903, Chapter 79, Part VIII, Title 29, Delaware Code, by striking subsection (2)(d) in its entirety and redesigning all subsequent subsections accordingly.

Section 2. Amend §7916 - §7918, Chapter 79, Part VIII, Title 29, Delaware Code, by striking said sections in their entirety.

Section 3. Amend §7919 - §7924, Chapter 79, Part VIII, Title 29, Delaware Code, by redesignating said sections as §7916 - §7921 respectively.

Section 4. Amend §7925, Chapter 79, Part VIII, Title 29, Delaware Code, by striking subsection (5) in its entirety, redesignating all subsequent subsections accordingly, and redesignating said section as new §7922.

reads "the Youth Services Commission of Delaware, the Department of Correction, the Board of Correction"; and by redesignating said amended section as new §7923.

Section 6. Amend §7927 - §7931, Chapter 79, Part VIII, Title 29, Delaware Code, by redesignating said sections as §7924 - §7928 respectively.

Section 7. Amend §4302, Title 11, Delaware Code, by striking the words "Health and Social Services" in the first paragraph and inserting in lieu thereof the word "Correction".

Section 8. Amend §4302, Title 11, Delaware Code, by striking the words "Secretary of Department of Health and Social Services" in the third paragraph and inserting in lieu thereof the words "Commissioner of the Department of Correction".

Section 9. Amend §4302, Title 11, Delaware Code, by striking paragraph six and inserting in lieu thereof the following:

"'Department' means the Department of Correction".

Section 10. Amend §4343, Title 11, Delaware Code, by striking in subparagraph (8) the words in the second sentence "Division of Corrections" and inserting in lieu thereof "Bureau of Adult Correction".

Section 11. Amend §6503, Title 11, Delaware Code, by striking in the first paragraph the words "Health and Social Services" and inserting in lieu thereof the word "Correction".

Section 12. Amend §6503, Title 11, Delaware Code, by striking in the second paragraph the words "Secretary of the Department of Health and Social Services" and inserting in lieu thereof the words "Commissioner of the Department of Correction".

Section 13. Amend §6503, Title 11, Delaware Code, by striking in the third paragraph, first sentence, the words "or 'Department of Correction' means the Department of Health and Social Services" and inserting in lieu thereof the words "means the Department of Correction".

Section 14. Amend Part VIII, Title 29, Delaware Code, by adding thereto a new Chapter, to be designated Chapter 89, which establishes a new Department of Correction and which new Chapter shall read as follows:

"CHAPTER 89. DEPARTMENT OF CORRECTION

§8901. Department of Correction.

The Department of Correction is established.

§8902. Commissioner; Bureau Chiefs; Acting
Commissioner; Appointment.

(a) The administrator and head of the Department shall be the Commissioner of the Department of Correction, who shall be a person qualified by training and experience to perform the duties of his office. The Commissioner shall be appointed by the Governor, with the advice and consent of the Senate, and shall serve at the pleasure of the Governor. He shall be paid an annual salary not in excess of $30,000.

(b) In the event the position of Commissioner is vacant, the Governor, by appointment, shall have the power to fill the position or positions of Bureau Chief as are vacant. Chiefs so appointed shall serve at the pleasure of the Governor, and upon the position of Commissioner being filled such Chiefs may be removed from office by the Commissioner with the written approval of the Governor.

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

§8903. Powers, Duties and Functions of the Commissioner.

The Commissioner shall:

(a) Supervise, direct and account for the administration and operation of the Department, its Bureaus, subbureaus, offices, functions and employees;

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

(1) A Chief of the Bureau of Adult Correction who shall be known as the Chief of Adult Correction. The Chief shall have a minimum of an earned graduate degree above that of bachelor from an accredited college or university, in one of the behavioral sciences, such as corrections, sociology, psychology or social work, with five years of experience in the correction's field, including a responsible administrative position.

(2) A Chief of the Bureau of Juvenile Correction who shall be known as the Chief of Juvenile Correction. The Chief shall have a minimum of an earned graduate degree above that of bachelor from an accredited college or university , in one of the behavioral sciences, such as corrections, sociology, psychology or social work, with five years of experience in the juvenile correction's field, including a responsible administrative position.

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

() Establish, consolidate, abolish, transfer, or combine the powers, duties and functions of the Bureaus, subbureaus and offices within the Department as the Commissioner, with the written approval of the Governor, may deem necessary, providing that all powers, duties and functions required by law shall be provided for and maintained;

(a) Make and enter into any and all contracts, agreements or stipulations, and retain, employ and contract for the services of private and public consultants, research and technical .personnel and to procure by contract, consulting, research, technical and other services and facilities, whenever the same shall be deemed by the Commission necessary or desirable, in the performance of the functions of the Department, and whenever funds shall be available for such purpose. All necessary legal services shall be pro vided pursuant to Chapter 25 of this Title;

() Delegate any of his powers, duties or functions to a Chief of a Bureau, except his power to remove employees of the Department or to fix their compensation;

(a) Establish and promulgate such rules and regulations governing the administration and operation of the Department as may be deemed necessary by him and which are not inconsistent with the laws of this State;

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

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

§8904. Department of Correction.

The Department of Correction shall have the powers, duties and functions as follows:

(1) To perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in:

(a) The Division of Corrections, pursuant to Chapter 79, Title 29, Delaware Code, which was vested with the powers, duties and functions which were previously vested in:

(i) The Department of Correction and the Board of Correction pursuant to Chapters 43 and 65, Title 11, Delaware Code;

(ii) The Youth Services Commission of Delaware pursuant to the provisions of Chapters 51 and 52, Title 31, Delaware Code.

(2) The Department of Corrections, shall furnish the Board of Parole adequate office facilities and supplies to properly perform its duties pursuant to the provisions of Chapter 43, Title 11, Delaware Code.

§8905. Council on Correction.

(a) There is established the Council on Correction.

(b) The Council on Correction shall serve in an advisory capacity to the Commissioner of Correction and shall consider matters relating to the development and progress of the correctional system of this State. The Council shall consider such other matters as may be referred to it by the Governor, the Commissioner, the Chief of the Bureau of Adult Correction, the Chief of the Bureau of Juvenile Correction. The Council may study, research, plan, and advise the several Chiefs, the Commissioner and the Governor on matters it deems appropriate to enable the Department to function in the best manner.

(c) The Council on Correction shall be composed of eleven members. Ten members shall be appointed for three-year terms by the Governor, and additionally, the Governor shall appoint a Chairperson to serve at his pleasure. The chairperson shall designate from the Council a Vice Chairperson for adult offenders and a Vice Chairperson for juvenile offenders. The Chairperson and the Vice Chairperson shall designate four members from the Council who shall serve as the subcouncil for adult offenders and who shall have as primary responsibilities along with the Vice Chairperson for adult offenders, for considering matters relating to the development and progress of the correctional system of this State, including correction facilities and services to adults. The Chairperson and the Vice Chairperson shall designate from the Council four members who shall serve on a subcouncil for juvenile offenders, and who shall have as primary responsibilities, along with the Vice Chairperson for juvenile offenders, for considering matters relating to the administration of training facilities for the detention, care, and treatment and after-care, supervision for youthful offenders and delinquents of this State as well as matters relating to the expansion of community services directed toward the overall prevention and control of juvenile delinquency.

() At least five, but no more than six members of th Council shall be affiliated with one of the major politic parties and at least four, but no more than five, of the nr appointed members shall be affiliated with the other major political party; provided, however, there shall be no more than a bare majority representation of one major political party over the other major political party. Any person who declines to announce his political affiliation shall also be eligible for appointment as a member of the Council.

(e) Members of the Council shall serve without compensation, except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council. Failure to attend three consecutive regular meetings of the Council shall be construed as a request by that member to resign from the Council and the Governor, upon notice from the Commissioner of the Department that a member has missed such meetings, may thereupon appoint another in his stead.

(0 Any replacement appointment to the Council to fill a vacancy prior to the expiration of a term, shall be filled only for the remainder of the term.

(g) All meetings of the Council shall be open to the public.

§8906. Exemptions.

The following positions set forth in this section shall specifically be exempt from the provisions of Chapter 59, Title 29, Delaware Code, as well as any others allowed by Chapter 59, Title 29, Delaware Code.

(a) Commissioner of Correction, and

(b) Chiefs as established by this Chapter, as well as any hereafter established, by the Commissioner, with the approval of the Governor.

§8907. Assumption of Functions.

The Department of Correction through appropriate Bureaus, agencies and offices shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions which were the previous responsibilities of the Division of Adult Corrections and the Division of Juvenile Corrections immediately prior to the effective date of this Chapter and which are not otherwise specifically transferred to the Department by the provisions of this Chapter.

§8908. Appeals.

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

§8909. Definitions and references in other laws.

(a) All definitions and references by any other commission, board, department, authority or agency which appear in any other Act or law shall, to the extent that the same are consistent with this chapter and in connection with a function transferred to the Department, be construed as referring and relating to the Department of Correction as created and established by this chapter.

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

§8910. Annual Report.

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

§8911. Budgeting and Financing.

The Commissioner, in cooperation with the Bureau Chiefs, shall prepare a proposed budget for the operation of the Department to be submitted for a consideration of the Governor and the General Assembly. The Department shall be operated within the limitation of the Annual Appropriation, and any other funds appropriated by the General Assembly. Special funds may be used in accordance with the programs, grants and appropriations.

§8912. Donations; Misnomer.

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

§8913. Financial Liability.

(a) In the event any person, juvenile or adult is committed to a prison or correctional institution, and in the event a court of this State has not ordered payment of the full cost of care, the Department may require such payments from such juvenile or adult while on' work release or similar programs,

as it may deem appropriate, provided that the total payment shall not exceed the actual cost of care while on the work release program.

(b) The Commissioner of the Department shall have the power to promulgate any rules and regulations not contrary to the laws of the State which he deems necessary to carry out the provisions of this section and such rules and regulations shall have the full force and effect of law.

() Any court of this State committing a person to the jurisdiction of the Department, may, in its discretion, order said person, and such other persons liable for the payment of costs under this section over which the court has jurisdiction, to pay for the cost of care, treatment or both in such amounts as may be fixed by the Department under the provisions of this Chapter.

(a) The "cost of care, treatment or both" per diem for a facility shall be deemed to mean the total disbursements made by or on behalf of such facility during a fiscal year, divided by the number of inmate or patient-days during such fiscal year. Such cost shall be computed based on the experience of the previous fiscal year and the revised rate shall be charged beginning on the first day of the fourth month following the end of said fiscal year. In the event the facility has not been operational during the previous fiscal year, the "cost of care, treatment or both" shall be the amount determined by the Department within the guideline of available appropriations and anticipated inmate or patient-days. In the event a facility provides various services that have substantially different costs, and such different costs may be reasonably identified, the Department may determine the "cost of care, treatment or both" based upon the particular service provided.

(b) The Department, after full investigation of collectibility and/or reasons for nonpayment, shall proceed for the recovery of the moneys owed for such care, treatment or both in an action to be brought in any court of the State in

the name of the Department, where such action is deemed justified. The Department of Justice of the State shall represent the Department in such cases and any costs to the State arising from such action shall be paid by the State Treasurer from moneys in the General Fund not otherwise appropriated.

§8914. Severability.

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

Section 15. This Act shall be effective on July 1, 1975.

Approved July 10, 1975