CHAPTER 239

FORMERLY

SENATE BILL NO. 314

AS AMENDED BY SENATE AMENDMENT NO. I

AN ACT TO AMEND CHAPTER 55. TITLE 29 OF THE DELAWARE CODE RELATING TO THE MANDATORY RETIREMENT AGE FOR STATE EMPLOYEES.

WHEREAS, the mandatory retirement age for State employees is age 70 years; and

WHEREAS, many State employees are physically and mentally able to continue to perform capably in their jobs after age 70, and the State could well benefit from the experience and acquired expertise of such employees; and

WHEREAS, the existence of a uniform mandatory retirement age is designed to promote orderly planning in State government and to allow for mobility and flexibility within the State's personnel system, and 70 years is widely accepted as a desirable retirement age for these purposes; and

WHEREAS, in order to reconcile these competing values permitting valuable State employees

with motivation and ability to continue working while preserving the personnel management utility of uniform mandatory retirement - the current mandatory retirement at age 70 must be made less inflexible; and

WHEREAS, any process permitting exceptions to an otherwise uniform mandatory retirement age must be carefully administered in order to ensure fairness to all State employees and to retain managerial flexibility; and

WHEREAS, in order to retain managerial flexibility, the affected agency must be given the discretion, subject to review for abuse, to grant or deny an exception to mandatory retirement where an employee demonstrates motivation and ability to continue to perform well and where the agency demonstrates a special need for the employee's continued services; and

WHEREAS, in order to ensure fairness to all State employees, the decision to grant or deny an exception to mandatory retirement must be reviewed by a State official or public body with a government- wide perspective to guarantee reasonably uniform application of the exception- making process.

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

Section 1. Amend §5521, Title 29 of the Delaware Code by adding a new subsection Icy as follows:

"(c) The provisions of subsection (a) to the contrary notwithstanding, an employee at the mandatory retirement age may continue his or her employment on a year- to- year basis if approved by the employing agency under the following conditions:

(1) Not later than six months before his or her mandatory retirement date, an employee may apply, on a form prescribed by the Director of the Office of State Personnel, for permission to continue State employment beyond the mandatory retirement date; as part of the application the employee shall execute an authorization permitting the employing agency to obtain copies of the employee's medical records and a current medical opinion from the employee's physician (s); the employing agency also may require the applicant employee to undergo a physical examination at the employee's expense;

(2) Not later than four months before the mandatory retirement date of the applicant employee, the head of the employing agency, in the exercise of sound discretion, shall grant or deny the application to continue State employment beyond the mandatory retirement date; the agency head shall inform the applicant employee in writing of the reasons for granting or denying the application;

(3) If the employee's application is denied, he or she shall have the right to appeal such decision to the State personnel Commission; the notice of appeal, stating the reasons therefor on a form prescribed by the Director of the Office of State Personnel, must be filed with the Personnel Commission not later than 15 days after the date of the decision denying the application;

(5) The Personnel Commission shall reverse the decision denying the application if it determines, after a hearing on the matter, that the decision was an abuse of the sound discretion of the head of the employing agency; the decision of the Personnel Commission shall be made not later than 30 days before the mandatory retirement date of the applicant employee; The effect of a decision to permit an employee to continue State employment beyond 70 years of age shall be to postpone for one year that employee's mandatory retirement date; annually thereafter the employee may request permission to continue State employment beyond the postponcd mandatory retirement date; such request shall be made and decided according to the procedures set forth in this subsection:

(6) Whether the head of the employing agency grants or denies the employee's application to continue State employment after the mandatory retirement date, a copy of the decision shall be provided to the Director of the Office of State Personnel, who shall report to the Governor and to the General Assembly each January 15 regarding the practical application of this subsection and any recommended revisions in the exception-making process.

(7) The provisions of this subsection shall not apply to those officials and employees described in subsection (b) of this section,"

Section 2. This Act shall take effect immediately upon its enactment into law but shall not apply to employees who retired from State employment prior to July 1, 1985.

Approved February 5, 1986.