TITLE 11

Crimes and Criminal Procedure

Law-Enforcement Administration

CHAPTER 83. STATE POLICE

Subchapter III. Service, Disability and Survivor's Pensions


As used in this subchapter:

(1) "Board'' shall mean the Board of Pension Trustees established by § 8308 of Title 29.

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

(3) "Credited service'' shall mean, for any member:

a. Service as an employee; and

b. Equalized state service if the member elects a unified pension.

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

a. Has not attained age 18; or

b. Has attained age 18 but not age 22 and is attending school on a full-time basis; or

c. Has attained age 18 and is permanently disabled as the result of a disability which began before the child attained age 18.

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

(5) "Employee'' shall mean an individual who is first employed by the State on or after July 1, 1980, on a full-time basis pursuant to an appointment as a State Police officer, as provided in § 8301 of this title.

(6) "Equalized state service'' shall mean:

a. Years of service as an "employee'' as defined in § 5501(f)(1) and (3) of Title 29, multiplied by 25/30, provided that the individual is not accruing nor collecting benefits under Chapter 55 of Title 29. It shall not include service for which the employee has received the withdrawal benefit provided by § 5530 of Title 29, or the refund provided by § 5523(b) of Title 29, unless such benefit or refund is first repaid with interest at a rate determined by the Board before such service may be equalized.

b. Years of service as an "employee'' as defined in § 5501(f)(1) and (3) of Title 29, multiplied by 25/30, provided that the individual is not accruing nor collecting benefits under Chapter 55 of Title 29. It shall not include service for which the employee has received the withdrawal benefit provided by § 5530 of Title 29, or the refund provided by § 5523(b) of Title 29, unless such benefit or refund is first repaid with interest at a rate determined by the Board before such service may be equalized.

c. Years of service as an "employee'' as defined in § 8801(5) of this title multiplied by 25/25, provided that the individual is not accruing nor collecting benefits under Chapter 88 of this title. It shall not include service for which the employee has received the withdrawal benefit provided by § 8824 of this title, or the refund provided by § 8814(d) of this title, unless such benefit or refund is first repaid with interest at a rate determined by the Board before such service may be equalized.

(7) "Final average compensation'' shall mean 1/36 of the compensation paid to an employee during any period of 36 consecutive months or any 36 months comprised of 3 periods of 12 consecutive months in the years of credited service in which the compensation was highest.

(8) "Fund'' shall mean the Fund established by § 8393 of this title.

(9) "Inactive member'' shall mean a member who:

a. Has terminated service;

b. Is not eligible to begin receiving a service or disability pension; and

c. Has neither applied for nor received a refund of the contributions.

(10) "Member'' shall mean a person who is first hired as an employee on or after July 1, 1980, and whose compensation is not subject to the federal old-age, survivors and disability insurance tax.

(11) "Normal retirement date'' shall mean the date at which a member is eligible for a service pension pursuant to § 8363(a) of this title. 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.

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

(13) "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:

a. The surviving spouse; or

b. 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

c. 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).

(14) "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 subchapter.

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

62 Del. Laws, c. 361, § 1; 67 Del. Laws, c. 86, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 167, § 1; 79 Del. Laws, c. 140, § 1; 79 Del. Laws, c. 174, § 1.;

An individual shall not receive a pension under this subchapter for any month during which the individual is an employee, as defined in § 8351(5) of this title or § 5501 of Title 29, unless the individual 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, disability or survivor's pension.

The employment, except employment as an elected official, may not be used for further retirement benefits.

62 Del. Laws, c. 361, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 142, §§ 1, 2.;

Except for orders of the Delaware Family Court for a sum certain payable on a periodic basis, the benefits provided by this chapter shall not be subject to attachment or execution and shall be payable only to the beneficiary designated and shall not be subject to assignment or transfer.

62 Del. Laws, c. 361, § 1; 71 Del. Laws, c. 337, § 1.;

A member may retire after accumulating 20 years of credited service as defined in § 8351(3)a. of this title, or shall be retired upon reaching the age of 55 years.

62 Del. Laws, c. 361, § 1; 66 Del. Laws, c. 192, § 2; 72 Del. Laws, c. 483, § 2.;

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

62 Del. Laws, c. 361, § 1; 67 Del. Laws, c. 86, § 9; 70 Del. Laws, c. 186, § 1.;

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

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

(2) The member's age plus credited service (but not less than 10 years) equals 75; or

(3) The member has 10 years of service and is retired due to age, pursuant to § 8361 of this title; or

(4) The member has 20 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 this subchapter in effect when the member ceased to be an employee, beginning with the first month after 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.

(d) Any member of the Delaware River and Bay Authority Police Department, the University of Delaware Police Department or a municipal police department not covered under § 8351(6) of this title who is subsequently employed by the Delaware State Police may receive credit for such previous service upon payment to the Fund, on or before the date of issuance of the individual's first benefit check, of a single lump sum payment equal to the actuarial value of the pension benefits to be derived from such service credits compiled on the basis of actuarial assumptions approved by the Board and the individual's attained age and final average compensation.

62 Del. Laws, c. 361, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 483, § 1; 73 Del. Laws, c. 373, § 1; 74 Del. Laws, c. 412, § 1.;

(a) A member who has 10 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, the member's service credits to the date of termination shall be cancelled unless:

(1) The member again becomes an employee within 4 months after such cessation of employment; or

(2) The member subsequently acquires 5 years of credited service; or

(3) The member has joined the state employees' pension system; and provided that if the member has withdrawn contributions the member repays 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 subchapter.

(d) A former employee's vested right shall be forfeited upon application for a refund of accumulated contributions.

62 Del. Laws, c. 361, § 1; 67 Del. Laws, c. 86, § 12; 70 Del. Laws, c. 186, § 1.;

(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 5 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.

(d) For the purposes of this section, whether a member is employed as an on-duty state trooper, as a municipal officer pursuant to a contract with the State, or on an authorized special duty function, the following duties shall be presumed to occur only while employed as a police officer, without limiting the scope of acts embraced by subsection (a) of this section:

(1) Engaging in a high-speed chase;

(2) Effecting an arrest (criminal or traffic);

(3) Pursuing a suspect (criminal or traffic);

(4) Patrolling (criminal or traffic);

(5) Directing traffic or removing traffic hazards;

(6) Assisting a civilian, for example, a motorist alongside of the highway or rendering aid in a life-threatening situation (fire, drowning);

(7) In-service training other than physical fitness;

(8) Performing police functions at a crime scene or in connection with the investigation thereof; or

(9) Being assaulted whether by a suspect, detainee, arrestee, prisoner or mental patient.

62 Del. Laws, c. 361, § 1; 70 Del. Laws, c. 374, § 1.;

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

62 Del. Laws, c. 361, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Disability pension payments shall be made to a member for each month beginning with the month in which the member becomes eligible to receive such pension and ending with the month in which the member 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, total earnings from any gainful occupation or business and worker'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 the 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 12 months in the calendar year for which earnings are reported, the deduction, if any, shall be determined on a pro rata basis.

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

(d) If a member who is disabled recovers and is no longer totally or partially disabled, the disability pension shall be discontinued unless:

(1) The member has reached normal retirement date; or

(2) In the case of a duty-connected disability, the member is not offered employment by the State in a position for which the member is suited by training and experience.

(e) 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.

62 Del. Laws, c. 361, § 1; 70 Del. Laws, c. 186, § 1.;

(a) The amount of the monthly ordinary service pension payable to a retired member shall be the sum of 2.5% of final average compensation multiplied by years of service up to 20 years inclusive, plus 3.5% of final average compensation multiplied by years of service above 20 years.

(b) Notwithstanding provisions of this chapter to the contrary, a member may elect to have his or her service or disability pension computed under this chapter reduced by 2% thereby providing a survivor's pension equal to 2/3 of such reduced amount to the employee's eligible survivor or survivors at the time of the employee's death. This election must be made in a form approved by the Board, filed prior to the issuance of the employee's first benefit check and shall be irrevocable.

(c) Notwithstanding provisions of this chapter to the contrary, a member may elect to have his or her service or disability pension computed under this chapter reduced by 3% thereby providing a survivor's pension equal to 75% of such reduced amount to the employee's eligible survivor or survivors at the time of the employee's death. This election must be made in a form approved by the Board, filed prior to the issuance of the employee's first benefit check and shall be irrevocable.

(d) Notwithstanding provisions of this chapter to the contrary, a member may elect to have his or her service or disability pension computed under this chapter reduced by 6% thereby providing a survivor's pension equal to 100% of such reduced amount to the employee's eligible survivor or survivors at the time of the employee's death. This election must be made in a form approved by the Board, filed prior to the issuance of the employee's first benefit check and shall be irrevocable.

62 Del. Laws, c. 361, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 483, § 4; 79 Del. Laws, c. 315, § 7.;

The amount of the unified pension payable to an employee, former employee or survivor shall be the sum of:

(1) The amount computed according to subchapter III of this chapter, exclusive of service credited under § 8351(6) of this title; plus

(2) The sum of the amounts computed, based on credited service as an employee, according to subchapter II of Chapter 55 of Title 29; subchapter II of Chapter 55A of Title 29; and Chapter 88 of this title.

62 Del. Laws, c. 361, § 1; 67 Del. Laws, c. 86, § 7.;

(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.

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

62 Del. Laws, c. 361, § 1.;

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:

(1) In the case of total disability, the minimum pension shall be 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

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

62 Del. Laws, c. 361, § 1.;

(a) Upon the death of a member in service, a monthly survivor's pension shall be payable to the primary survivor equal to 1/2 of the member's compensation.

(b) Upon the death of a member in service, whose death occurred in the line of duty, a monthly survivor's pension shall be payable to the primary survivor equal to three-quarters of the member's compensation.

(c) Upon the death of a retired member, a monthly survivor's pension shall be payable to the primary survivor and surviving dependents equal to the greater of: (i) 1/2 of such service or disability pension; (ii) if such pension was computed under the provisions of § 8368(b) of this title, 2/3 of such service or disability pension; (iii) if such pension was computed under the provisions of § 8368(c) of this title, 75% of such service or disability pension; or (iv) if such pension was computed under the provisions of § 8368(d) of this title, 100% of such service or disability pension. If the primary survivor is the surviving spouse, such person must have been married to the deceased member:

(1) Prior to retirement; or

(2) For at least 1 year before the date of death, unless the death was the result of an accident.

(d) 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, it shall become payable in the following month to the next primary survivor as defined in § 8351(13) of this title 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 § 8351(4) of this title 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.

62 Del. Laws, c. 361, § 1; 67 Del. Laws, c. 86, § 16; 69 Del. Laws, c. 154, § 2; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 100, §§ 1, 2; 79 Del. Laws, c. 315, § 8.;

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.

62 Del. Laws, c. 361, § 1.;

(a) The accumulated 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 be refunded upon withdrawal from service. There shall be a rebuttable presumption that a former member who fails to apply for a withdrawal benefit within 5 years after the date of withdrawal has waived the 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, the member may request refund of accumulated contributions with interest. Refund of such contributions shall extinguish all rights to benefits under this subchapter.

62 Del. Laws, c. 361, § 1; 70 Del. Laws, c. 186, § 1.;

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

(b) Any reduction in a member's salary, mandated as part of the FY 2010 Annual Appropriations Act [77 Del. Laws, c. 84] and implemented during FY 2010, shall not be used when computing an employee's final average compensation. Rather, the member's base salary as of June 30, 2009, shall be used in calculating the employee's final average compensation as defined in § 8351(7) of this title.

(c) If the final average compensation of an employee has been reduced because of a leave of absence resulting from presidential determinations to augment active forces, such employee shall have their final average compensation adjusted by their amount of military compensation. This adjustment will be no greater then what the employee would have received had they remained in employment for the period of leave. The employee will contribute 7% of the amount that was adjusted.

62 Del. Laws, c. 361, § 1; 77 Del. Laws, c. 84, § 87; 77 Del. Laws, c. 167, § 2.;

(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.

(c) A service pension, disability pension, or survivor's pension applied for under this act may be paid into a Miller Trust Bank account, pursuant to the creation of an irrevocable income assignment trust ("Miller Trust''), established on behalf of an eligible pensioner or survivor covered under this chapter who is a person with disabilities, so long as the Miller Trust is established consistent with the laws of the State of Delaware, the laws of the United States and in accordance with the rules and regulations of the local and federal agencies responsible for administering assistance programs for persons with disabilities.

62 Del. Laws, c. 361, § 1; 77 Del. Laws, c. 408, § 5.;

No member covered by this subchapter may be covered by subchapter II of this chapter.

62 Del. Laws, c. 361, § 1.;

Effective January 1, 2001, member contributions to the Fund shall be 7% of monthly compensation. Effective July 1, 1997, employee pension contributions made pursuant to this section shall not be subject to adjustment or recovery after the expiration of 3 full calendar years from December 31 of the year in which the contributions were made unless no contributions were paid during that calendar year.

62 Del. Laws, c. 361, § 1; 71 Del. Laws, c. 165, § 7; 72 Del. Laws, c. 483, § 3.;

(a) The actuary shall prepare an actuarial valuation of the assets and liabilities of the funds as of June 30, each year. On the basis of reasonable actuarial assumptions and tables approved by the Board, the actuary shall determine the normal cost required to meet the actuarial cost of current service and the unfunded actuarial accrued liability.

(b) The State's appropriation to the funds for fiscal year 2008, and for each fiscal year thereafter, shall be the percentage of covered payroll approved by the Board on the basis of the most recent actuarial valuation, and shall equal the sum of the normal cost plus the payment required to implement the provisions of subsection (c) of this section plus the payment required to amortize the unfunded actuarial accrued liability using an open amortization period of 20 years. The amortization payment shall be an amount computed as a level percentage of the prospective total covered payroll over the remainder of the amortization periods, with such prospective total covered payroll to be determined on the basis of a growth rate, as determined by the Board, compounded annually. Except as provided in subsection (c) of this section, all funds appropriated pursuant to this subsection shall be deposited into the Fund established by § 8393 of this title.

(c) In order to provide a fund for postretirement increases, the State shall include in its annual appropriation payments equal to 2.33% of covered payroll, subject to the limitations contained in § 5548(a)(2) of Title 29. Beginning with the fiscal year 94 budget, .70% of covered payroll shall be appropriated; in fiscal year 95, 1.11% of covered payroll shall be appropriated; in fiscal year 96, 1.52% of covered payroll shall be appropriated; in fiscal year 97, 1.93% of covered payroll shall be appropriated; in fiscal year 98 and each fiscal year thereafter 2.33% of covered payroll shall be appropriated. Funds appropriated to implement this subsection shall be deposited into the Post Retirement Fund established by § 5548 of Title 29.

69 Del. Laws, c. 104, § 3; 76 Del. Laws, c. 80, § 68; 78 Del. Laws, c. 116, § 6.;

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 of this chapter, 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. Subject to Internal Revenue Code § 401(a)(24) [26 U.S.C. § 401(a)(24)], the assets of the Fund will be commingled in the Delaware Public Employees' Retirement System as provided for by § 8308 of this title. The assets of the Fund are held in trust and may not be used for or diverted to any purpose other than for the exclusive benefit of the employees and their beneficiaries.

62 Del. Laws, c. 361, § 1; 71 Del. Laws, c. 121, § 5; 76 Del. Laws, c. 279, § 10.;

(a) Each participating employer, pursuant to the provisions of § 414(h)(2) of the United States Internal Revenue Code [26 U.S.C. § 414(h)(2)], shall pick up and pay the contributions which would otherwise be payable by the members under § 8391 of this title. The contributions so picked up shall be treated as employer contributions for purposes of determining the amounts of federal income taxes to withhold from the member's compensation.

(b) Member contributions picked up by the employer shall be paid from the same source of funds used for the payment of compensation to a member. A deduction shall be made from each member's compensation equal to the amount of the member's contributions picked up by the employer. This deduction, however, shall not reduce the member's compensation for purposes of computing benefits under the retirement system pursuant to this chapter.

(c) Member contributions shall be credited to a separate account within the member's individual account so that the amount contributed prior to the effective date for the pickup of member contributions may be distinguished from the amounts contributed on or after the effective date.

(d) The contributions, although designated as employee contributions, are being paid by the employer in lieu of the contributions by the employee. The employee will not be given the option of choosing to receive the contributed amounts directly instead of having them paid by the employer to the retirement system.

68 Del. Laws, c. 358, § 5.;

(a) Upon the death of an individual receiving a pension under this subchapter, a benefit will be paid from the Fund in the same manner as benefits provided under § 5546 of Title 29.

(b) The benefit granted under this section shall not be construed as a contractual obligation of the State or of the Pension Fund and may be revised or terminated by an act of the General Assembly.

70 Del. Laws, c. 77, § 2; 76 Del. Laws, c. 80, § 91.;

Benefits shall be due and payable under this chapter only to the extent provided in this chapter, and neither the State nor the New State Police Retirement Fund shall be liable for any amount in excess of such sums.

71 Del. Laws, c. 132, § 86.;

Funds appropriated to implement this section shall be deposited into the OPEB Fund as established by § 5281 of Title 29.

76 Del. Laws, c. 70, § 9.;