CHAPTER 235

FORMERLY

HOUSE BILL NO. 440

AN ACT TO AMEND AN ACT BEING CHAPTER 3, VOLUME 68, LAWS OF DELAWARE, ENTITLED "AN ACT TO REINCORPORATE THE TOWN OF ELSMERE," TO ELIMINATE THE OFFICE OF DIRECTORS OF PUBLIC SAFETY AND TO PROVIDE FOR THE POLICE FORCE OF THE TOWN OF ELSMERE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Volume 68, Chapter 3, Laws of Delaware, by deleting Section 702 thereof in its entirety and substituting in lieu thereof a new Section 702 to read as follows:

"Section 702. Police and Department of Public Safety

Department of Public Safety; Created; Composition.

There is hereby created a department for the Town of Elsmere, to be known as the Department of Public Safety, which shall consist of a full-time Chief of Police and such officers and employees as may be assigned to this Department.

Appointment.

(i) The Chief of Police shall be appointed by a three-quarters vote of the whole Council and shall serve with compensation in accordance with the policy wage scale. The Chief of Police shall be entitled to and shall receive all of the benefits given to all sworn police personnel including police pension.

(ii) The Chief shall have the same rights to engage in political

activity as are afforded to any other person. The right to engage in political activity shall not apply to the Chief while he or she is on duty or while he or she is acting in his or her official capacity or while in uniform.

(iii) The Chief of Police shall not hold any other municipal office while serving as the Chief of Police.

(iv) The Chief of Police may be removed for cause by the Council, with concurrence of a three-quarters vote of the whole Council, in accordance with applicable Town ordinances adopted by a three-quarters vote of the whole Council and the laws of the State of Delaware.

(v) The Chief of Police shall be a certified police officer and shall be appointed from within the Department, unless the Council by a three-quarters vote of the whole Council determines there is not a qualified person in the Department. To be eligible for appointment to Chief of Police from within the Department, an officer shall have applied for such appointment and shall meet the following criteria:

The candidate shall have at least five (5) years of continuous service within the Department.

The candidate shall currently hold the rank of sergeant or above.

The candidate shall have received two consecutive favorable evaluations by his or her superiors.

The candidate shall have experience in police command.

(vi) Notwithstanding subparagraph (v), above, the Council may appoint a Chief of Police who is not then an officer in the Department if the Council determines by a three-quarters vote of the whole Council that it is in the best interest of the Town to do so. Any person so appointed shall have qualifications at least equal to those set forth for appointment from

within the Department, except that his or her years of continuous service need not have been within the Department.

(3) Investigation, Disciplinary Action, Demotion or Dismissal.

Whenever the Chief is under investigation or is subject to
questioning for any reason which could lead to disciplinary action, demotion or dismissal, the investigation or questioning shall be conducted pursuant to the procedures provided by Town Ordinance adopted by a three-quarters vote of the whole Council and the laws of the State of Delaware.

If Council, following a hearing on any charges against the Chief of Police, determines to impose any disciplinary action, demotion or dismissal, the Chief of Police shall have the right to appeal to the Superior Court of the State of Delaware within thirty (30) days of any vote by Council on such charges. The appeal shall be taken in accordance with the rules of the Superior Court and shall be based solely on the record made before Council.

(4) Powers and Duties.

The Chief of Police shall be responsible for the day to day operation, jurisdiction, management and control of the Department of Public Safety of the Town of Elsmere. He shall be responsible to the Council for the administration of the Public Safety Department.

(5) Preparation and Approval of Budget.

The Chief of Police shall each year submit in writing a budget to the Council in the time-frame as ordained by Council. After careful consideration of said proposed budget, the Council shall make an appropriation of monies to the Department which shall serve as the actual annual budget.

The Chief of Police shall then administer the Department within the monetary restraints or the total amount of funds allocated by the annual budget to the Department of Public Safety. Should additional monies become necessary to properly administer the Department, the Chief of Police shall prepare a presentation to the Council which will explain in detail the reason for the expected shortfall and will discuss possible alternative solutions to the problem(s). The Chief will then request the Council to take action to eliminate the problem. The Council shall act on such request within a reasonable time.

(6) Payment of Accounts.

All accounts contracted by the Department of Public Safety in the course of the affairs of the Department shall be paid by the Town Treasurer out of the appropriation provided for in the preceding Section upon proper voucher approved by the Chief of Police and in accordance with the standard operating procedures of the Town.

(7) Duties of the Town Solicitor.

The Town Solicitor shall be the legal advisor and attorney for the Department of Public Safety; he shall prosecute all actions against an officer, agent or employee of the Department of Public Safety for official misconduct; he shall be the legal counsel of such Department.

(8) Department Physician.

The Department of Public Safety is hereby authorized to appoint and commission annually a physician.

(9) Personnel of Department.

In addition to the powers conferred upon the Chief by this Act, the Chief of Police shall appoint such number of officers, agents, members and employees of the Department and fill vacancies therein; provided that any increase in the number of employees currently employed upon the adoption of this Act shall be proposed by the Chief and approved by a three-quarters vote of the whole Council. The Chief shall fix and regulate the salary of the employees provided that any amendment of the current police wage compensation scale in effect upon the adoption of this Act shall be proposed by the Chief and approved by a three—quarters vote of the whole Council."

Section 2. All employees of the Department of Public Safety of the Town of Elsmere at the time this Act goes into effect shall continue in such employment at the same compensation and in the same positions as during the month preceding the adoption of this Act until removed or until the compensation is changed.

Section 3. Mayor and members of the Council not to Interfere with the Department.

The Mayor and no individual member of Council and none of the committees of the Council shall attempt to coerce or influence the Chief of Police in any of the day to day operations of the Department of Public Safety.

Except for the purpose of inquiry, the Mayor and no individual member of Council shall direct any employee of the Department of Public Safety except through the Chief of Police under this Act.

Section 4. Saving Clause.

If any section, subsection, sentence, clause, or phrase of this Act is for any reason held invalid, such decision or decisions shall not affect the validity of the remaining portions of this Act. All rules, regulations, directives, orders and standard operating procedures shall remain in full force and effect except insofar as they conflict with the provisions of this Act in which case the provisions of the Act shall govern.

Section 5. This Act shall take effect upon its enactment into law by the signature of the Governor.

Approved April 27, 1992.