Del. Code 29, § 5501 : State Government — State Employees' Pension Plan — General Provisions — Definitions

2 Sep 2016

Current through 2016 Legislative Session, Act 399

(a) "Approved medical leave" means a leave of absence from covered state employment, without pay, for a definite period of time, authorized by the head of the employee's department or agency, and necessitated by the employee's mental and/or physical condition. Approved medical leaves shall not exceed 1 year unless extended by the Board of Pension Trustees.
(b) "Board" means the Board of Pension Trustees established by § 8308 of this title.
(c) "Compensation" means for any individual all salary, wages and fees, including overtime payments and special payments for extra duties, payable to such individual for service credited under paragraphs (d)(1), (2) and (3) of this section and the value of any maintenance provided for the individual as part of such payments. For any post-2011 employee "compensation" means all salary, wages and fees, including special payments for extra duties, excluding overtime payments payable to such individual for service credited under paragraphs (d)(1), (2) and (3) of this section and the value of any maintenance provided for the individual as part of such payments. For those individuals who purchase credited service under paragraph (d)(12) of this section "compensation" shall include the salary, wages and fees that such individuals would have received had they remained in such employment for the term of the approved leave.
(d) "Correction officer" shall mean an employee employed by the Department of Correction in a position responsible for supervising correctional officers in secured facilities and/or classified with a correctional officer job title and authorized to receive hazardous duty level A-1 per the state merit rules authorized in § 5914 of this title.
(e) "Credited service" shall mean, for any individual:
(1) Service as an employee, excluding any period during which an employee is on an approved leave unless service credit for such period or periods of leave is purchased pursuant to paragraphs (9), (10), (11) and (12) of this subsection.
(2) Service before June, 1970, which was deemed to be "covered employment" as defined in this section as in effect on May 31, 1970.
(3)
(i) Service for which credit was allowed pursuant to § 5522 of this title as in effect on May 31, 1970, and service before June, 1970, for which credit was allowed pursuant to § 5525(a) and (b) of this title as in effect on May 31, 1970; provided, however, that the provisions of § 5525(c) of this title as in effect on May 31, 1970, shall remain in effect and (ii) service as a justice of the peace or as a constable for Justices of the Peace Courts, regardless of whether such person was paid by salary or by fee; provided, however, that if a justice of the peace or a constable for Justices of the Peace Courts is eligible for a pension under a county or municipal pension system of this State, any such service used to establish eligibility under such county or municipal pension system shall only be used in determining such an employee's eligibility under this chapter and shall not be used to determine the pension to be paid under this chapter to such an employee and (iii) service of any individual who became an employee under this chapter on July 1, 1969, in accordance with Volume 57, Laws of Delaware, Chapter 228, provided that, notwithstanding any provision of this chapter to the contrary, the pension of any such individual shall be the greater of the pension determined under this chapter or under the statutory pension system of the county in which any such individual was employed on June 30, 1969, as such statutory pension system was in effect on June 30, 1969, with the amount of any such pension to be determined by using any such individual's total period of service up to retirement.
(4) Who first became an employee before July 1, 1976, full-time active duty, not in excess of 5 years, in the armed services of the United States during time of war or national emergency, provided that the individual became an employee within 5 years after completion of the individual's tour of duty, or within 5 years after the completion of a course of professional or vocational training, if such course was begun within 5 years after completion of the individual's tour of duty, except that the aforesaid 5-year period within which the individual must become an employee shall not apply to full-time officers and members of the National Guard of the State who were active members of the State Employees' Pension Plan on June 1, 1970.
(5) Who first became an employee before July 1, 1976, service in professional educational employment, not in excess of 4 years, performed for another state, a municipality in another state, the federal government or an accredited private school or college anywhere in the world, provided that the individual who rendered such service (i) subsequently becomes an employee as a schoolteacher, professional administrative or supervisory employee or school nurse employed in a public school, the State Department of Education, the University of Delaware, Delaware State University or Delaware Technical and Community College and (ii) on or before the date of issuance of the first pension benefit check, pays into the fund an amount equal to 5% of the final average compensation for each month so credited except that individuals who retire prior to December 31, 1981, and who elect not to buy-in under subsection (e) of this section shall pay into the Fund an amount equal to 5% of the prior final average compensation for each month so credited; provided, however, that an individual shall not be permitted to obtain credited service under this section for out-of-state professional educational employment for any month during which such individual received a pension under this chapter.
(6) If an individual ceases to be an employee before the individual has acquired 5 years of credited service, the individual's service credits to the date of termination shall be cancelled but shall be restored if: (i) The cessation of employment is due to absence on account of military service, disability or approved leave, under such rules as the Board may adopt, and the individual again becomes an employee within 4 months after such absence, or (ii) the individual again becomes an employee within 4 months after such cessation of employment, or (iii) the individual subsequently acquires 5 years of credited service, or (iv) the individual has been involuntarily terminated for reason other than cause and is rehired within 2 years of the involuntary termination, or (v) the individual has joined another state pension plan which provides for a unified state service pension, or (vi) the individual is subsequently employed in the rehabilitation aide program of the Division of Vocational Rehabilitation of the Department of Labor, provided that if the individual has withdrawn such contributions the individual repays them with interest at a rate determined by the Board.
(7) Any former or present State Fire Marshal, Deputy State Fire Marshal or any successor or substitute therefor who shall have been a volunteer and uncompensated State Fire Marshal or Deputy State Fire Marshal shall receive full credit for the time served as such volunteer and uncompensated State Fire Marshal or Deputy State Fire Marshal in computing the number of years' service required to receive pension benefits provided in this chapter.
(8) Any employee may elect to purchase (i) up to 5 years of credited service for full-time active duty in the armed services of the United States, and/or (ii) up to 5 years of credited service for full-time employment performed for another state, a political subdivision of another state or other service with this State for which the employee will not receive pensionable credit in another Delaware state pension plan, a county or municipality of this State, the federal government or an accredited private school or college anywhere in the world, provided that the individual pays into the Fund, on or before the date of issuance of the individual's first benefit check, a single lump-sum payment equal to the actuarial value of the pension benefits to be derived from such service credits computed on the basis of actuarial assumptions approved by the Board and the individual's attained age and final average compensation. An individual may not accrue a total of more than 10 years of credited service under this paragraph and under paragraphs (4) and (5) of this subsection, and any credited service purchased under this paragraph shall not be used to determine eligibility for benefits under this chapter.
(9) Approved medical leave if the employee pays into the Fund prior to the issuance of his or her first pension check contributions determined by multiplying the rates in effect at the time of payment for employee contributions and state appropriations times the average of the 36 months of creditable compensation used to calculate the individual's pension benefit times the months or fractions thereof so credited. Any credited service purchased for medical leave shall not be used to determine eligibility for benefits under this chapter. For an employee who first became employed before July 1, 1976, the maximum amount of employee contributions and state appropriations used in this calculation will be 5% of the final average compensation.
(10) Approved sabbatical leave other than that provided by § 1325 of Title 14 if the employee pays into the Fund, prior to the issuance of his or her first pension check, contributions equal to the sum of the employee contributions and state appropriations which would have been made to the Fund during such periods of sabbatical leave, with the amount of such contributions to be determined in accordance with rules and regulations adopted by the Board.
(11) Approved leave, other than approved medical and sabbatical leaves, provided that the employee pays into the Fund, prior to the issuance of his or her first pension check, contributions determined by multiplying the rates in effect at the time of payment for employee contributions and state appropriations times the average of the 36 months of creditable compensation used to calculate the individual's pension benefit times the months or fractions thereof so credited. Any credited service purchased under this paragraph shall not be used to determine eligibility for benefits under this chapter.
(12) Approved leave granted to an employee without pay, for a definite period of time, inclusive of approved extensions, authorized by the head of the employee's department or agency to assume an elected position in an employee organization as defined in Chapter 40 of Title 14, Chapter 13 of Title 19 and Chapter 16 of Title 19; provided, that within 15 days following the end of each month that such an employee is on such leave, the employee pays contributions equal to the sum of the employee contributions and employer appropriations that would have been made to the Fund based on the salary that would have been paid to the employee had the employee continued to be employed in the capacity in which such employee was employed immediately prior to such leave by an entity described in subsection (a)(1) of this section during such approved leave of absence.
(13) In determining an employee's eligibility under this chapter, such an employee shall be considered to have been in covered employment during a period of documented interruption not to exceed 2 months and not otherwise provided for in this chapter. The term "documented interruption" shall be defined in the rules and regulations of the Board of Pension Trustees but shall not include interruptions due to termination of employment. Time so credited under this subsection for eligibility shall not be used for the computation of retirement benefits. This subsection shall apply to employees who retire on or after January 1, 1979.
(14) "Equalized state service" shall mean:
a. Years of service as an "employee" as defined in § 5551(5) of this title, multiplied by 3 0/30, provided that the individual is not accruing nor collecting benefits under Chapter 55A of this title. It shall not include service for which the employee has received the withdrawal benefit provided by § 5580 of this title, or the refund provided by § 5573(b) 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.
b. Years of service as an "employee" as defined in § 8351(5) of Title 11, multiplied by 3 0/25, provided that the individual is not accruing or collecting benefits under subchapter III of Chapter 83 of Title 11. It shall not include service for which the employee has received the withdrawal benefit provided by § 8374 of Title 11, or the refund provided by § 8364(d) of Title 11, 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 Title 11, multiplied by 3 0/25, provided that the individual is not accruing or collecting benefits under Chapter 88 of Title 11. It shall not include service for which the employee has received the withdrawal benefit provided by § 8824 of Title 11, or the refund provided by § 8814(d) of Title 11, unless such benefit or refund is first repaid with interest at a rate determined by the Board before such service may be equalized.
d. Years of service as a "member" as defined § 5600(5) of this title, provided that the individual is not accruing nor collecting benefits under Chapter 56 of this title. It shall not include service for which the employee has received the withdrawal benefit provided by § 5612(b) of this title, or the refund provided by § 5608(b) 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.
(15) Service with the Delaware Solid Waste Authority as established by Chapter 64 of Title 7.
(16) Service prior to October 1, 1987, with the county Prothonotary offices provided that the individual was employed by that office immediately prior to October 1, 1987, and further provided that the past service cost associated with such service is paid into the Fund, by the respective counties, on a schedule approved by the Board of Pension Trustees.
(17) Service commencing July 1, 1995 with the Office of Disciplinary Counsel, which office is established by rule of the Delaware Supreme Court.
(18) Service with the county Register in Chancery Office, provided that the individual was employed by that office immediately prior to January 1, 2002, and further provided that the past service cost associated with said service is paid into the Fund by the respective counties or individuals on a schedule approved by the Board of Pension Trustees.
(19) Service with the Jobs for Delaware Graduates (JDG) program a teacher or administrator of the program; provided however, that the individual pays into the Fund, on or before the date of issuance of the individual's first benefit check, a single lump-sum payment equal to the actuarial value of the pension benefits to be derived from such service credit computed on the basis of actuarial assumptions approved by the Board and the individual's attained age and final average compensation. Any credited service purchased under this paragraph shall not be used to determine eligibility for benefits under this chapter. No individual shall purchase more than one year of state-credited service for each year of JDG service, up to a maximum total of 5 years provided further, that each year of state-credited service may not result in pension credit for another Delaware Pension Plan.
(20) Service for accrued sick leave, not in excess of 1 year, provided that the employee on or before the date of issuance of the first benefit check, pays into the fund an amount equal to 5% of the final average compensation for each month credited. Periods of accrued sick leave beyond 90 days or the balance for which the employee received payment may be converted to creditable service; 1 month of credited service will be granted for each 21 days of accrued sick leave beyond 90 days or the balance for which the employee received payment. Educational employees will receive credited service based on the contract establishing the employee's school year. Any credited service purchased under this paragraph shall not be used to determine eligibility for benefits under this chapter.
(21) Service for the period of time that an employee was collecting disability benefits pursuant to Chapter 52A of this title.
(f) "Employee" shall mean an individual who:
(1) Is employed by:
a. The State, including elected or appointed officials; or
b. The State Department of Education, a school district which is part of the state school system, the University of Delaware, Delaware State University or Delaware Technical and Community College, the Wilmington Federal Credit Union; or
c. A state agency that is supported wholly or in part by funds granted to the State by the federal government;
(2) Is employed on a full-time or annual basis or on a regular part-time basis, as the terms "full-time or annual basis" and "regular part-time basis" are defined in rules and regulations adopted by the Board, except that an individual whose initial appointment to a gubernatorial appointed board, council or commission occurs after June 30, 2013, shall not be considered employed on a regular part-time basis;
(3) Receives compensation wholly or in part directly from the State Treasury or from the Treasury through an agency within the State that is wholly or in part supported by the State;
(4)
a. Is not a member of any other state or municipal retirement system which is financed in whole or in part by the State unless the state pension plan provides for a unified state service pension and the member is not concurrently accruing or collecting benefits under that system; and
b. Is not a member of a county pension plan with respect to which the employee is accruing credited service and to which the employee and/or the State is making contributions on account of employment with the State;
(5) A person who meets the requirements of this subsection shall be regarded as an "employee" during the period he or she is on an approved leave and, for school personnel who do not work on 12-month basis, during the period between the expiration of such leave and the beginning of the next regular school term.
(g) "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 that employee's years of service credited under paragraphs (d)(1), (2) and (3) of this section in which that employee's compensation was highest, or the average monthly compensation paid to an employee during the period of that employee's service credited under paragraphs (d)(1), (2) and (3) of this section if such period is less than 36 months. Teachers who receive awards under the "Teacher of the Year" program under § 8903 of Title 14 and Merit System employees who receive awards under the "Delaware Award for Excellence and Commitment in State Service" program shall have added to their compensation the dollar amount of such awards, granted during their employment, in determining the final average compensation to be used in the computation of their pension.

Employees that receive a final lagged payment for credited service as defined under § 2712 of this title shall have added to their creditable compensation the amount of lag pay that is received in determining the final average compensation to be used in the computation of their pension.

(h) 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. § 301 et seq.], based on his or her final average compensation and the provisions of the federal Social Security Act [ 42 U.S.C. § 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.
(i) "Post-2011 employee" shall mean an employee, as defined in subsection (e) of this section, who is first employed by the State on or after January 1, 2012.
(j) "Prior 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 that employee's years of service credited under paragraphs (d)(1) through (3) of this section in which that employee's compensation was highest, or the average monthly compensation paid to an employee during the period of that employee's service credited under paragraphs (d)(1) through (3) of this section if such period is less than 36 months, except that compensation in excess of $24,000 during any calendar year or the sum of any partial calendar years in such period of 36 months shall be excluded and total compensation for such period of 36 months shall not exceed $72,000; provided however, that for an employee who, prior to the issuance of that employee's first pension check, pays to the Fund contributions determined in accordance with the rules and regulations approved by the Board equal to the sum of (1) the additional employee contributions which would have been made to the Fund if the maximum limit of $24,000 per annum for computing employee contributions had not been applied, (2) an amount determined by applying the rate of state appropriations to the Fund in effect on December 31, 1976, to that employee's earnings from January 1, 1966, to December 31, 1976, in excess of $24,000 per annum and (3) interest compounded at the rate of 6% per annum on the sum of (1) and (2) from the end of the calendar year accrued to the date paid, "prior final average compensation" shall then mean "final average compensation" as defined in subsection (f) of this section.
(k) Any other provisions of this chapter notwithstanding, the blind and sighted employees of the concession stands which are operated by and under the control of the Bureau for the Visually Impaired, if otherwise qualified under this chapter and regardless of the source from which their respective salaries were heretofore paid, shall be considered in covered employment under this chapter, and the time from which their period of service shall be deemed to have commenced shall be the time when they began their respective service starting in 1948.
(l)

[Subsection (l) Effective Upon Fulfillment of 79 Del Laws, c 174, section 5 ]

"Correction Officer" shall mean an employee employed by the Department of Correction in a position responsible for supervising inmates insecured facilities and classified with a Correctional Officer job title and authorized to receive Hazardous Duty Level A-1 per the State Merit Rules authorized in §5914 of this Title.
Del. C. § 5501
Amended by Laws 2015, ch. 132,s 1, eff. 1/1/2016.
Amended by Laws 2013, ch. 140,s 1, eff. 7/24/2013.
Amended by Laws 2013, ch. 45,s 1, eff. 6/19/2013.
29 Del. C. 1953, § 5501; 57 Del. Laws, c. 592, § 1; 57 Del. Laws, c. 741, § 38A; 58 Del. Laws, c. 180, § 2A-2E; 58 Del. Laws, c. 527, §§ 1A-1C, 1G, 1H; 59 Del. Laws, c. 211, § 1; 59 Del. Laws, c. 474, § 1; 59 Del. Laws, c. 477, § 1; 60 Del. Laws, c. 483, §§ 2-12; 61 Del. Laws, c. 453, §§ 1-5; 61 Del. Laws, c. 454, §§ 1-4; 62 Del. Laws, c. 116, §1; 62 Del. Laws, c. 139, §§1 - 7; 62 Del. Laws, c. 361, §§2 - 4; 63 Del. Laws, c. 247, §1; 64 Del. Laws, c. 393, §2; 65 Del. Laws, c. 342, §§1, 2; 66 Del. Laws, c. 185, §27; 66 Del. Laws, c. 245, §2; 66 Del. Laws, c. 370, §1; 67 Del. Laws, c. 86, §3; 67 Del. Laws, c. 124, §§1, 7; 67 Del. Laws, c. 199, §1; 67 Del. Laws, c. 413, §§1, 2; 68 Del. Laws, c. 447, §§1, 2; 69 Del. Laws, c. 67, §2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 187, § 1; 71 Del. Laws, c. 365, § 2; 71 Del. Laws, c. 476, §§ 1 - 3; 73 Del. Laws, c. 65, §§ 33, 34; 73 Del. Laws, c. 153, § 1; 73 Del. Laws, c. 415, § 1; 73 Del. Laws, c. 436, § 1; 74 Del. Laws, c. 58, § 1; 75 Del. Laws, c. 191, §§ 3, 5; 75 Del. Laws, c. 227, § 8; 78 Del. Laws, c. 14, §§ 9, 10.;