CHAPTER 361

FORMERLY

SENATE BILL NO. 560

AS AMENDED BY SENATE AMENDMENT NO. 2 AND HOUSE AMENDMENT NO. 3

AN ACT TO AMEND CHAPTER 83, TITLE 11 AND CHAPTER 55, TITLE 29 OF THE DELAWARE CODE RELATING TO STATE POLICE PENSIONS.

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

Section 1. Amend Chapter 83, Title I1 of the Delaware Code by adding a new Subchapter III as follows:

"SUBCHAPTER III

§8351. Definitions.

As used in this Subchapter:

(a) "Board" shall mean the Board of Pension Trustees established by Section 8308 of Chapter 83, Title 29, Delaware Code.

(6) "Compensation" shall mean all salary or wages, excluding overtime payments and special payments for extra duties, payable to a member for service.

(e) "Credited service" shall mean, for any member,

(1) service as an employee; and

(2) equalized State service if the member elects a unified pension.

(d) "Dependent" shall mean a dependent child or dependent parent. A dependent child is a person who is unmarried and either:

(I) has not attained age 18, or

(2) has attained age 18 but not age 22 and is attending school on a full time basis, or

(3) has attained age 18 and is permanently disabled as the result of a disability which began before he attained age 18.

A dependent parent is the parent of a member who was receiving at least one-half of his support from the member at the time of the member's death.

(e) "Employee" shall mean an individual who is first employed by the State on or after July I, 1980, on a full time basis pursuant to an appointment as a State pollee officer, as provided in Title 11, Section 8301.

(f) "Equalized State service" shall mean years of service as an "employee" as defined in Chapter 55, Section 5501(a)(1) and (2) of Title 29, multiplied by 25/30. It shall not include service for which the member has received the withdrawal benefit

provided by Chapter 55, Section 5530, or the refund provided by Chapter 55, Section 5523(b), unless such benefit or refund is first repaid with interest at a rate determined by the Board before such service may be equalized.

(g) "Final average compensation" shall mean 1/36 of the compensation paid to an employee during any period of thirty-six consecutive months in his years of credited service in which his compensation was highest.

(h) 'tFund" shall mean the Fund established by Section 8393 of this Title.

(i) "Inaetive member" shall mean a member who

(I) has terminated service;

(2) is not eligible to begin receiving a service or disability pension; and

(1) has neither applied for nor received a refund of his contributions.

(j) "Member" shall mean a person who is first hired as an employee on or after July I, 1980, and whose compensation is not subject to the federal old-age, survivors and disability insurance tax.

(k) "Normal retirement date" shall mean the date at which a member is eligible for a service pension pursuant to Section 8363(a) of this Subchapter. For a member who has received a disability benefit, the period of disability plus credited service, not to exceed 25 years, shall be used in determining normal retirement date.

(1) "Partial disability" shall mean a medically determined physical or mental impairment which renders the member unable to function as a State pollee officer and which is reasonably expected to last at least 12 months.

(m) "Primary survivor" shall mean a person in the following order of priority, unless the priority is changed by the member on a form prescribed by the Board and filed with the Board at the time of the member's death-

(I) the surviving spouse, or

(2) if there is no eligible surviving spouse, a dependent child (or with the survivor's pension divided among them in equal shares, all such children, including any resulting from a pregnancy prior to the member's death), or

(3) if there is no eligible surviving spouse, or eligible dependent child, a dependent parent (or, with the survivor's pension divided between them in equal shares, both such parents).

(n) "Retired member" shall mean a member who has terminated service, other than an inactive member, who is eligible to receive a service or disability pension under this Chapter.

(o) "Total disability" shall mean a medically determined physical or mental impairment which renders the member totally unable to work in tiny occupation for which he is reasonably suited by training or experience, which is reasonably expected to last at least 12 months.

S8352. Employment of pensioners.

An individual shall not receive a pension under this Subchapter for any month during which he is an employee, as defined in Section 8351(e) of this Chapter or Section 5501 of Chapter 55, Title 29, unless he is-

(1) An official elected by popular vote at a regular or special election, or

(2) An official appointed by the Governor, or

(3) A registration or election official, or a juror, or

(4) Receiving an ordinary service or survivor's pension.

§8353. Attachment and assignment of benefits.

The benefits provided by this Subchapter shall not be subject to garnishment and shall be payable only to the beneficiary designated, and shall not be subject to assignment or transfer.

§§8355-8360. Reserved.

§§8361. Mandatory retirement.

A member shall retire after accumulating 25 years of credited service as defined in Section 8351(e)(1).

§8362. Retirement option.

When the member applies for a service pension, he shall choose either a unified pension or an ordinary pension.

§8363. Eligibility for service pension.

(a) A member shall become eligible to receive a service pension, after he has terminated employment, beginning with the month when

(1) he has 10 years of credited service, and has attained age 62; or

(2) his age plus credited service (but not less than 10 years) equals 75; or

(3) he has 25 years of credited service.

(b) An inactive member with a vested right to a service pension shall become eligible to receive such pension, computed in accordance with the provisions of this Subchapter in effect when he ceased to be an employee, beginning with the first month after his attainment of age 62.

(e) For purposes of this section, credited service shall include any period during which a member Is receiving a disability pension as provided by this subchapter.

§8364. Vesting rights; return to service.

(a) A member who has ten years of credited service shall have a vested right to a service pension.

(b) If a member who has less than ten years of credited service ceases to be an employee, his service credits to the date of termination shall be cancelled unless (I) he again becomes an employee within 4 months after such cessation of employment; or (ii) he subsequently acquires 5 years of credited service; or WO he has joined the State employees' pension system; and provided that if he has withdrawn his contributions he repays them with interest at a rate determined by the Board.

(e) For purposes of this section, credited service shall include any period during which a member is receiving a disability pension as provided by this subchapter.

§8365. Eligibility for disability pension.

(a) A member who suffers a partial or total disability resulting from an individual and specific act the type of which would normally occur only while employed as a police officer, shall be eligible for a duty-connected disability pension. If such act involves a traumatic event which directly causes an immediate cardiovascular condition which results in partial or total disability, the member shall be eligible for a partial or total duty-connected disability pension.

(b) A member with five years of credited service who suffers a partial or total disability and who is not eligible for a duty-connected disability pension shall be eligible for an ordinary partial or total disability pension.

(c) The determination of disability and its cause shall be made by the Board after receiving the recommendation of its medical committee.

§8366. Payment of service pension.

Service pension payments shall be made to a retired member for each month beginning with the month in which he becomes eligible to receive such pension and ending with the month in which he dies.

§8367. Payment of disability pension.

(a) Disability pension payments shall be made to a member for each month beginning with the month in which he becomes eligible to receive such pension and ending with the month in which he ceases to be eligible or dies.

(b) Any member receiving a disability pension who has not reached normal retirement date shall report to the Board annually, in a form prescribed by the Board, his total earnings from any gainful occupation or business and Workmen's Compensation benefits in the preceding calendar year. The excess of such earnings and/or such benefits over the current base pay of the rank held at the time of disability shall be deducted from his disability pension beginning 90 days following the day the report is due, in a manner determined by the Board. If any member received a disability pension for less than twelve months in the calendar year for which earnings are reported, the deduction, if any, shall be determined on a pro rata basis.

(e) if a member who is initially determined to be totally disabled recovers, yet is still partially disabled, his total disability pension shall be reduced to a partial disability pension for as long as he shall remain partially disabled.

(d) If a member who is disabled recovers and is no longer totally or partially disabled, his disability pension shall be discontinued unless (0 he has reached normal retirement date, or (ii) in the ease of a duty-connected disability, he N not offered employment by the State in a position for which he is suited by training and experience.

(e) A member aggrieved by the reclassification or termination of disability pension pursuant to subsection (e) or (d) of this section may appeal such decision to the Superior Court within 30 days of the day the decision is mailed. The appeal shall be on the record, without a trial de novo. The Court may remand the ease to the Board for further proceedings on the record if the Court determines that the record is insufficient for review. When factual determinations are at issue, the Court's review,- In the absence of actual fraud, shall be limited to a determination of whether the Board's decision is supported by substantial evidence in the record.

§8368. Amount of ordinary service pension.

The amount of the monthly ordinary service pension payable to a retired member shall be 1/40 of his final average compensation multiplied by the number of years (not to exceed 25), taken to the nearest twelfth of a year, in his period of credited service.

§8369. Amount of unified service pension.

The amount of the unified service pension payable to a retired member shall be the sum of-

(a) 1/40 of his final average compensation multiplied by the number of years (not to exceed 25), taken to the nearest twelfth of a year, in his period of credited service as defined in subparagraph 8351(c)(1); plus

(b) The amount computed according to the provisions of Section 5527(a)(2), Chapter 55, based on his period of credited service as defined in subparagraph 8351(eX2).

§8370. Amount of duty-connected disability pension.

(a) The duty-connected total disability pension shall be 75% of compensation plus 10% of compensation for each dependent during the period of dependency, not to exceed a total of 25% of compensation for all dependents.

(b) The duty-connected partial disability pension shall be computed in the same manner as the service pension based on credited service accrued to the date of disability, subject to a minimum of 50% of compensation.

(e) Medical costs made necessary by reason of duty-connected disability shall be paid by the Fund.

§8371. Amount of ordinary disability pension.

The ordinary disability pension shall be computed in the same manner as the service pension based on credited service accrued to the date of disability, subject to the following-

(a) in the ease of total disability, the minimum pension shall he 50% of compensation plus 5% of compensation for each dependent during the period of dependency, not to exceed a total of 20% of compensation for, all dependents; and

(a) in the case of partial disability, the minimum pension shall be 30% of compensation.

§8372A. Survivor's pension.

(a) Upon the death of a member in service a monthly survivor's pension shall he payable to his primary survivor equal to one-half of the member's compensation.

(b) Upon the death of a retired member, a monthly survivor's pension shall be payable to his primary survivor and surviving dependents equal to one-half of such service or disability pension. If the primary survivor is the surviving spouse, such person must have been married to the deceased member (i) prior to retirement or (ii) for at least one year before the date of death, unless the death was the result of an accident.

(e) A survivor's pension shall begin with the month following the month in which the member or retired member dies. If payable to a surviving spouse who dies or marries, it shall become payable in the following month to the next primary survivor as defined in 8351(m) or cease with that month in the absence of eligible dependents. If payable to a child who dies or fails to meet the conditions of eligibility in Section 835I(d) it shall become payable in the following month to a dependent parent or cease with that month in the absence of eligible parents. If payable to a parent, it shall cease with the month in which the parent dies.

§8373. Death benefit.

Upon the death of a member, inactive member, retired member, or individual receiving a survivor's pension, there shall be paid to the designated beneficiary or beneficiaries or, in the absence of a designated beneficiary, to the estate of the member, inactive member, retired member, or survivor, a lump sum equal to the excess, if any, of the accumulated member contributions with interest over the aggregate of all pension payments made.

§8374. Withdrawal benefit.

(a) The accumlated contributions with interest of a member who is neither eligible for a service nor disability pension, nor has a vested right to a service pension, shall he refunded upon his withdrawal from service. There shall be

rebuttable presumption that a former member who fails to apply for a withdrawal benefit within five (5) years after the date of withdrawal has waived his right to such benefit.

(b) If a member has a vested right to a service pension and withdraws from service and is not immediately eligible for a service or disability benefit, he may request refund of his accumlated contributions with interest. Refund of such contributions shall extinguish all rights to benefits under this subchapter.

§8375. Adjustment of benefits.

A pension payable under this subchapter shall be adjusted no less liberally then adjustments made for pensions payable under the State Employees' Pension Plan, taking into account adjustments to Social Security benefits payable to State employees.

§8376. Application of benefits.

(a) A service pension, disability pension, survivor's pension, death benefit, or withdrawal benefit shall be paid only upon the filing of an application in a form prescribed by the Board. A monthly benefit shall not be payable for any month earlier than the second month preceding the date on which the application for such benefit is filed.

(b) The Board may require any member, inactive member, retired member, or eligible survivor to furnish such information as may be required for the determination of benefits under this Subchapter, or to authorize the Board to procure such information. The Board may withhold payment of any pension under this Subchapter, whenever the determination of such pension is dependent upon such information and the member, inactive member, retired member, or eligible survivor does not cooperate in the furnishing or procuring thereof.

§8377. Dual Membership Prohibited.

No member covered by the provisions of Subchapter 111 of this Chapter may be covered by the provisions of Subchapter II of this Chapter.

§§8378-90. Reserved.

§8391. Member contributions.

Member contributions to the Fund shall be 5% of monthly compensation. 58392. State contributions.

The contribution of the State for each fiscal year shall be the percentage of covered payroll approved by the Board on the basis of the most recent actuarial valuation, and shall equal (i) the normal cost; plus (ii) adjustments for actuarial gains and losses or increases in benefits adopted on or subsequent to participation; plus (iii) administrative costs.

§8393. Establishment of Fund.

There shall be established a State Police Retirement Fund, hereinafter referred to as the "Fund", separate and distinct from the fund established under Subchapter II, Chapter 83, Title 11, to which State appropriations and other employer contributions shall be deposited monthly, and to which member contributions shall be deposited upon deduction from the member's paycheck, and to which earnings on investments, refunds, and reimbursements shall be deposited upon receipt, and from which benefits shall be paid and fees and expenses authorized by the Board shall be paid."

Section 2. Amend Subsection 5501(a)(3), Chapter 55, Title 29, Delaware Code by inserting after the word "State" and before';" the following:

"unless the State Pension Plan provides for a unified State service pension and the member is not concurrently accruing nor collecting benefits under that system;"

Section 3. Amend Subsection 5501(bX5), Chapter 55, Title 29, Delaware Code by inserting after the phrase "involuntary termination," in subparagraph (iv), the following:

"or (v) he has joined another State Pension Plan which provides for a unified State service pension."

Section 4. Amend Subsection 5591(b), Chapter 55, Title 29, Delaware Code by adding a new subparagraph as follows:

"(13) Service with another State Pension Plan that provides for a unified State service pension, provided that such years of credited service shall be multiplied by a ratio the numerator of which shall he the accrual rate earned under this chapter and the denominator of which shall be the accrual rate earned under that system."

Approved July 10, 1980.