CHAPTER 445

FORMERLY

SENATE BILL NO. 523

AN ACT TO AMEND TITLE 11, DELAWARE CODE, RELATING TO THE ESTABLISHMENT OF A DELAWARE COUNTY AND MUNICIPAL POLICE PENSION PLAN.

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

Section 1. Amend Title 11, Delaware Code, by adding thereto a new Chapter 86 to read as follows:

"CHAPTER 86. DELAWARE COUNTY AND MUNICIPAL POLICE PENSION PLAN

§8601. Definitions

As used In this Subchapter:

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

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

(c) 'Credited service' shall mean, for any member,

service as an employee; and

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:

has not attained age 18, or

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

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 employed on a full time basis as a police officer by a county or municipality in Delaware which has affiliated with the Fund established by this Chapter.

(f) 'Equalized State service' shall mean years of service as an 'employee' as defined in Chapter 55, §5551(5) 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, §5580, or the refund provided by Chapter 55, §5573(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„ for services rendered during those thirty-six months, in his years of credited service in which his compensation was highest.

(h) 'Fund' shall mean the Fund established by §8643 of this Title.

'Member' shall mean a person who is an employee on or after the date the employer affiliates with the Fund.

'Inactive Member' shall mean a member who is an employee on or after the

has terminated service;

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

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

(k) 'Normal retirement date' shall mean the date at which a member is eligible for a

service pension pursuant to §8613(a) of this Chapter. 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 police 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 on file with the Board at the time of the member's death:

the surviving spouse, or

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 and resulting from a pregnancy prior to the member's death), or

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 any occupation for which he is reasonably suited by training or experience, which is reasonably expected to last at least 12 months.

(p) The clause 'for which he or she is eligible under the Federal Social Security Act' shall mean the old age insurance benefit or the disability insurance benefit for which an individual is or will be eligible by virtue of age and his or her wage credits under the Federal Social Security Act (42 U.S.C. Sec. 301 et seq.), based on his or her final average compensation and the provisions of the Federal Social Security Act (42 U.S.C. Sec. 301 et seq.) in effect when the individual ceased to be an employee under this Chapter and computed in accordance with rules and regulations approved by the Board, regardless of any other factors such as, without limitation, whether the employee has made application for Social Security benefits or is subsequently employed.

§8602. Employment of Pensioners

An individual shall not receive a service or disability pension under this Chapter for any month during which he is an employee as defined in §8601, Chapter 86, Title 11, or §5551, Chapter 55, Title 29, unless he is:

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

An official appointed by the Governor, or

A temporary employee whose earnings from such temporary employment do not exceed the maximum allowed by Social Security without affecting Social Security Benefits, or

A registration or election official, or a juror.

§8603. Attachment and Assignment of Benefits

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

§8604. Waiver of Benefits

Any individual entitled to any benefits under this Chapter may decline to accept all or any part of such benefits by a waiver signed and filed with the Board. Such waiver may be revoked in writing at any time, but no payment of the benefits waived shall be made covering the period during which such waiver was in effect.

§8605. Optional Participation of Counties and Municipalities

Any county or municipality may elect to participate in the County and Municipal Police Pension Plan beginning July 1 of any year on or after July 1, 1984. Application to participate shall be by resolution approved by the governing body of the county or municipality and shall be submitted to the Board in such form as the Board shall determine, not later than 90 days prior to the date participation is to begin, except such time limit may be reduced by the Board. Any such application, upon approval by the Board, shall be irrevocable. Each participating county and municipality shall provide such information to the Board as it may require for the administration of this Chapter.

§8606 - §8610. Reserved

§8611. Mandatory Retirement

A member shall be retired after accumulating 25 years of credited service as defined in §8601(c)(1).

§8612. Retirement Option

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

§8613. 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:

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

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

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 Chapter in effect when he ceased to be an employee, beginning with the first month after his attainment of age 62.

(c) 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.

§8614. 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 10 years of credited service ceases to be an employee, his service credits to the date of termination shall be cancelled unless:

he again becomes an employee within 4 months after such cessation of employment; or

he subsequently acquires 5 years of credited service; or

he has Joined the State Police pension system within 4 months after cessation of employment; or

he has Joined the State Police pension system and subsequently acquires 5 years of credited service; and provided that if he has withdrawn his contributions he repays them with interest at a rate determined by the Board.

(c) For purposes of this Section. credited service shall include any period during which a member is receiving a disability pension as provided by this Chapter.

Section 8615. Eligibility for Disability Pension

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 pollee 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.

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.

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

Section 8616. 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.

Section 8617. Payment of Disability Pension

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.

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.

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.

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

A member aggrieved by the reclassification or termination of disability pension pursuant to subsection (c) 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 case 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.

Section 8618. 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 under this Chapter, provided that the service pension, beginning at age 62 or, if later, at retirement shall in no case exceed 75 percent of final average compensation minus the old age insurance benefit for which he or she is eligible under the Federal Social Security Act at age 62, the result to be multiplied by the ratio, not to exceed 1, the numerator of which is his or her years of credited service and the denominator of which is 25 years.

Section 8619. Amount of Unified Service Pension

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

The amount computed according to the provisions of Section 8618 of this Chapter; plus

The amount computed according to the provisions of Section 5577(1), Chapter 55. based on his period of credited service as defined in subparagraph 8601(c)(2).

Section 8620. Amount of Duty-Connected Disability Pension

The duty-connected total disability pension shall be 75% of final average compensation plus 10% of final average compensation for each dependent during the period of dependency, not to exceed a total of 25% of final average compensation for all dependents provided that the disability pension, when combined with the disability insurance benefit or old age insurance benefit for which he or she is eligible under the federal Social Security Act (42 U.S.C. Sec. 301 et seq.), without taking into account any increases in such benefit after payments commence, shall in no case exceed 100 percent of final average compensation.

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 final average compensation provided that the disability pension, when combined with the disability insurance benefit or old age insurance benefit for which he or she is eligible under the federal Social Security Act (42 U.S.C. Sec. 301 et seq.), without taking into account any increases in such benefit after payments commence, shall in no case exceed 100 percent of final average compensation.

Medical costs made necessary by reason of duty-connected disability which are in excess of those amounts paid by any health care coverage or Workman's Compensation shall be paid by the Fund. Payments under this subsection will be paid upon the filing of a claim in a form prescribed by the Board.

Section 8621. 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 -in the case of total disability, the minimum pension shall be 50% of final coverage compensation plus 5% of final average compensation for each dependent during the period of dependency, not to exceed a total of 20% of final average compensation for all dependents provided that the disability pension, when combined with the disability insurance benefit or old age insurance benefit for which he or the is eligible under the federal Social Security Act (42 U.S.C. Sec. 301 et seq.), without taking into account any increases in such benefit after payments commence, shall in no case exceed 75 percent of final average compensation; and in the case of partial disability, the minimum pension shall be 30% of final average compensation provided that the disability pension, when combined with the disability insurance benefit or old age insurance benefit for which he or she is eligible under the federal Social Security Act (42 U.S.C. Sec. 301 et seq.) without taking into account any increases in such benefit after payments commence, shall in no case exceed 75 percent of final average compensation.

Section 8622. Survivor's Pension

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

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 (Li) for at least one year before the date of death, unless the death was the result of an accident.

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 8601(m) or cease with that month in the absence of the eligible dependents. If payable to a child who dies or fails to meet the conditions of eligibility in Section 8601(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.

Section 8623. 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.

Section 8624. Withdrawal Benefit

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

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 accumulated contributions with interest. Refund of such contributions shall extinguish all rights to benefits under this subchapter.

Section 8625. Adiustrnemt °LB.:meats

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.

Section 8626. Armligation 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 chapter, or to authorize the Board to procure such information. The Board may withhold payment of any pension under this chapter, 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.

Section 8627. — 8640. Reserved

Section 8641. Member Contributions

Member contributions to the Fund shall be 3% of monthly compensation for members covered under the Federal Social Security Act (42 U.S.C. Sec. 301 et seq.) and 5% of monthly compensation for members not covered under the Federal Social Security Act (42 U.S.C. Sec. 301 et seq.).

Section 8642. Employer Contributions

The contribution of the County or Municipal for each fiscal year shall be the percentage of covered payroll approved by the Board on the basis of the most recent actuarial violation, and shall equal (1) the normal cost; plus (11) adjustments for actuarial gains and losses or increases in benefits adopted on or subsequent to participation; plus (iii) administrative costs.

Section 8643. Establishment of Fund

There shall be established a County and Municipal Police Retirement Fund, hereinafter referred to as the "Fund", separate and distinct from the fund established under Subchapters II and III, Chapter 83, Title 11, to which County or Muncipal 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."

Approved July 20, 1984.