CHAPTER 523

FORMERLY

SENATE BILL NO. 361

AS AMENDED BY

SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 59, TITLE 29, DELAWARE CODE RELATING TO ENFORCEMENT OF THIS CHAPTER BY LEGAL ACTION.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Section 5943, Chapter 59, Title 29, Delaware Code, by striking said section in its entirety and substituting in lieu thereof a new Section 5943 to read as follows:

"§5943. Enforcement of this Chapter by Legal Action

(a) The exclusive remedy available to a classified employee for the redress of an alleged wrong, arising under a misapplication of any provision of this Chapter, the Merit Rules or the Director's Regulations adopted thereunder, is to file a grievance in accordance with the procedure stated in the Merit Rules. Standing of a classified employee to maintain a grievance shall be limited to an alleged wrong that effects his or her status in his or her present position.

(b) Any Delaware resident or State employee may maintain a suit to restrain a disbursing officer from making any payment in contravention of any provision of this Chapter, the Merit Rules or the Director's Regulations adopted thereunder. Jurisdiction for such action shall lie in the Chancery Court.

(c) The State may maintain an action for the reimburseir ment of wages, benefits, or both, paid contrary to the provisions of this Chapter, the Merit Rules or the Director's Regulations adopted thereunder, against the recipient employee. All monies recovered in such action shall be paid to the State Treasury and credited to the accountefrom which original payments had been drawn. The Appointing Authority may take disciplinary action against any employee in the classified service who negligently prepared the document authorizing the overpayment of wages, benefits, or both, contrary to any provision of this Chapter, the Merit Rules, or the Director's Regulations adopted thereunder. Disciplinary action shall not be taken against any employee in the classified service who merely signed such document authorizing overpayment unless the person so signing participated in the preparation of such document.

(d) Any person appointed or employed in contravention of any provision of this Chapter, the Merit Rules, or the Director's Regulations adopted thereunder, who performs services for which he is not paid may maintain an action against any officer or officers who purported to so appoint or employ him to recover the agreed wages, benefits, or both, or the reasonable value thereof, if no pay was agreed upon, plus interest, court costs, and reasonable attorney's fees.

(e) It shall be the obligation of the Appointing Authority to determine that documents necessary for placing a person on the State payroll are properly executed prior to the date that the employee begins, transfers to, promotes to, demotes to, or in any other way changes his position in State employment. Documentation, depending on the position to be filled, consists of some or all of the following:

(1) Job application,

(2) Certification list,

(3) Copy of the job posting if a permanent position,

(4) Written notification signed by the Appointing Authority stating:

(i) Position being filled,

(i) Pay grade and step of the employee,

(i) Employee's gross pay each pay period,

(ii) Source of funding of the position,

(iii) Two (2) copies of the employee's Social Security card,

(5) One (1) executed copy of the appropriate State Personnel transaction form, and

(6) Hiring approval during a hiring freeze.

In the event that an employee otherwise qualified for classified service is properly appointed but improperly placed on the State payroll, the State shall be liable for the wages, benefits, or both, of the employee during the first ten (10) working days of the employee's employment. In the event that the employee is not properly placed on the State payroll by the end of the employee's tenth working day, the Appointing Authority shall lay off the employee until the

employee is properly so placed, or be liable to the employee for his wages, benefits, or both, in accordance with subsection (d) of this section. The review date for persons not properly placed on the State payroll shall be the date the person first reported for duty in that position.

(f) For the purpose of subsections (d) and (e) of this section, the Director of State Personnel or his designate shall determine whether an employee is properly appointed. The Director or his designate shall signify his approval by signing the State Personnel Transaction Form supplied by the Agency. The signature of the Director or his designate shall relieve any officer or Appointing Authority from liability, because of an improper appointment, except where the improper appointment was effected through the fraud of any officer or Appointing Authority. The signature of the Director or his designate shall similarly relieve any Officer or Appointing Authority from liability for the payment of wages, benefits, or both, arising under subsections (d) and (e) of this section, except where the officer or Appointing Authority is grossly negligent in disregarding any provision of this Chapter, the Merit Rules, or the Director's Regulations adopted thereunder. Such signature by the Director or his designate shall not prevent the Appointing Authority from taking disciplinary action against any employee in the classified service who negligently prepared the document authorizing the overpayment of wages, benefits, or both.

(g) If the Appointing Authority wrongfully withholds certification of the payroll account of any employee, such employee may maintain a proceeding to compel the Appointing Authority to certify such payroll account.

(h) No action for the reimbursement of wages, benefits, or both, improperly paid to a State employee shall be brought after the expiration of three (3) years from the date the wages, benefits, or both were improperly paid.

(i) The provisions of Section 8111, of Title 10, shall be applicable to employment between a person and the State.

(j) Following the passage of this Act, all State Agencies shall conduct audits of the payroll records of each of its employees. In the event that the audit indicates that a discrepancy exists between the amount actually paid and the amount that should have been paid, the Agency shall notify the employee, the Appointing Authority, the Secretary of Finance, and the Auditor of Accounts, with sufficient documentation to point out the source and amount of the discrepancy, within ten (10) calendar days of the date of the completion of the audit. In the event that the audit indicates

an overpayment, the Appointing Authority shall provide the Attorney General with the same notice provided the employee. The Attorney General may proceed in accordance with subsection (c) of this section. The Appointing Authority shall, within one pay period, correct the discrepancy on proper personnel payroll forms.

(k) For the purpose of this Chapter, 'Appointing Authority' shall be as defined in the Merit Rules adopted pursuant to Section 5914, of Title 29.

(1) Nothwithstanding the provisions of any section of the Delaware Code, or any uncodified section of the Delaware law to the contrary, no action for reimbursement as hereinbefore described shall be brought by the State for the overpayment of wages or benefits made, up to and including the last day of the pay period following the date this Act becomes effective.

(m) To permit all State agencies to comply and conduct the audit required by subsection (i) of this Act, this Act shall become effective six (6) months from the date it is signed."

Approved July 12, 1978.