Sec. 39-31. - Short title.

This article shall be known as the City of Wilmington Employees' Retirement Act.

(46 Del. L. ch. 237, § 1; Code 1968, § 28A-1)

Sec. 39-32. - Determination of coverage.

(a)

An employee shall be considered in covered employment within the meaning of this article while the employee receives a regular salary or wages wholly or in part directly or indirectly from the treasurer of the city or any department or agency thereof, or from the county treasurer of the county, or the state treasurer of the state; provided, however, that an employee shall not be considered in covered employment if he is a parttime or seasonal employee who is not regularly employed for more than 120 working days in any one calendar year, or if his only employment is as a member of the following boards and commissions: board of directors of the street and sewer department, board of harbor commissioners, board of health, board of park commissioners, department of motor vehicles, board of water commissioners, department of public safety, public building commission, planning commission, county department of elections, sinking fund commissioners and zoning commission.

(b)

All elective officials and all other persons appointed to public office and who are paid compensation by the aforementioned officers shall be considered as covered employees and as persons in covered employment, anything to the contrary in this article otherwise notwithstanding.

(46 Del. L. ch. 237, § 3; 48 Del. L. ch. 284, § 1; 51 Del. L. ch. 159, § 2; 54 Del. L. ch. 169, § 1; Code 1968, § 28A-2)

Sec. 39-33. - Credit for service in armed forces.

(a)

In the case of an employee of the city who is called to the service of, or voluntarily enters the armed forces of the United States of America, or the national guard of the state when in continuous active service, the board or department employing such employee is hereby authorized and directed to grant to such employee a leave of absence which shall cover the entire period of service, not exceeding four years, and upon the completion of such leave of absence and service, to reinstate such employee in the position which such employee held at the time that such leave of absence was granted.

(b)

If any employee of the city who shall have entered the armed services shall have been employed in any board or department of the city which shall come under any pension plan enacted or to be enacted by the legislature of the state, the time spent by such employee in the armed services shall accrue to his benefit in establishing his right to a pension. This article shall be retroactive to protect the rights of any employee who shall have qualified as provided in this section prior to June 5, 1951.

(c)

The provisions of this section, in regard to time spent in the armed services of the United States of America in time of war, shall be deemed an exception to the provisions of section 39-34

(48 Del. L. ch. 284, § 1; 51 Del. L. ch. 151, § 2; 54 Del. L. ch. 169, § 1; Code 1968, § 28A-3)

Sec. 39-34. - Length of service required for eligibility; interruptions of service.

An employee who shall be in covered employment under this article on the date of retirement and who shall have served in covered employment for at least 15 years during the period that ends on the date of retirement, who has served in covered employment for at least five years immediately preceding the date of retirement, and whose service includes no interruption from continuous covered employment, except allowable interruptions, shall be considered eligible for retirement benefits within the meaning of this article, except as otherwise provided. Allowable interruptions from continuous covered employment shall be interruptions arising from:

(1)

Leaves of absence granted to employees;

(2)

Entering the armed services of the United States of America in time of war;

(3)

Involuntary severance of employment not due to any fault or neglect on the part of such employee; or

(4)

Voluntary severance of employment for a period not to exceed one year;

but the employee shall not be considered in covered employment during any period of such interruption. The usual vacation allowed any employee of any department or agency shall not be considered an interruption from continuous employment.

(46 Del. L. ch. 237, § 4; 51 Del. L. ch. 159, § 1; Code 1968, § 28A-4)

Sec. 39-35. - Restriction on eligibility.

No employee shall be considered eligible for retirement benefits under the provisions of this article who is covered or potentially covered by any other county or municipal pension plan or statute, except as otherwise provided.

(46 Del. L. ch. 237, § 4; 54 Del. L. ch. 169, § 2; Code 1968, § 28A-5)

Sec. 39-36. - Age or years of service.

Every covered employee of the city within the meaning of this article may be retired after such employee shall have served in covered employment for 20 years, or on or after attaining the age of 60 years in the case of a female employee, or the age of 65 years in the case of a male employee, and shall after retirement during the remainder of his life receive the pension fixed by this article, subject to such qualifications and reservations as are contained in this article; provided, that prior to July 1, 1948, any covered employee may continue active work at his option, irrespective of his age, provided he continues to be mentally and physically fit and is able to properly discharge his duties, but on and after such date a covered employee may continue active work at the option of the department or agency by which he is employed up to the age of 65 years for female employees or 70 years for male employees, at which time retirement shall be mandatory for covered employees. Nothing contained in this article shall be construed to make mandatory the retirement of any employee who is not in covered employment.

(46 Del. L. ch. 237, § 2; 47 Del. L. ch. 225; 47 Del. L. ch. 257, § 1; 49 Del. L. ch. 230, § 1; 51 Del. L. ch. 165, § 1; Code 1968, § 28A-6)

Sec. 39-37. - Request.

(a)

A covered employee may request retirement with pension in accordance with this article by making a written request therefor to the president or chairman or other principal person of the department or agency by which he is employed at least 30 days prior to the date of retirement; or the president or chairman or other principal person of the department or agency may, with the approval of a majority of the governing board of such department or agency, and in accordance with this article, retire a covered employee of his or their department or agency by giving written notice to the employee at least 30 days prior to the date of retirement. In either event, the president or chairman or other principal person of the department or agency shall prepare a statement in such form as may be prescribed by the city treasurer to enable him to comply with the provisions of this article. The president, chairman or other principal person of such department or agency shall, at least 15 days prior to the date of retirement, give a certified copy of such statement to the city treasurer. A copy of such statement shall also be given to the employee at least 15 days prior to the date of retirement.

(b)

All records of whatever kind or character received or to be received by the city treasurer on pension cases shall be kept by him as all other official records of his office are preserved.

(46 Del. L. ch. 237, § 8; Code 1968, § 28A-7)

Sec. 39-38. - Notification of ineligibility; resolution.

When the employee is not entitled to the pension benefits of this article, the city treasurer shall so advise him by letter, but if the employee is entitled to the pension benefits of this article, the city treasurer shall so advise the mayor, whereupon the mayor shall prepare, sign, seal, and deliver to the employee, an appropriate resolution in the following form:

RESOLUTION

WHEREAS, The retirement of   (name)     (address)  an employee of the City of Wilmington, State of Delaware, from   (his or her)   duties as   (title of duty)   in the   (name of dept. or agency)  , presents a suitable opportunity for expressing the esteem in which we hold   (name)   as a faithful and satisfactory public servant; therefore,

BE IT RESOLVED, That the City of Wilmington expresses its warmest appreciation and thanks to   (name)   for the able and loyal manner in which   (he or she)   has uniformly performed   (his or her)   public duties and BE IT FURTHER RESOLVED, That this Resolution be   (his or her)   evidence of a right to the pension provided by the "CITY OF WILMINGTON EMPLOYEES' PENSION ACT."

(SEAL)

(46 Del. L. ch. 237, § 10; Code 1968, § 28A-8)

Sec. 39-39. - Report of estimated number to be filed with annual budget request.

Each department or agency of the city that shall come within the provisions of this article shall, not less than 30 days prior to the date when the city budget shall be fixed by the council in each year, submit a salary or wage payroll record to include employees eligible for pension and which shall contain the names, addresses and amounts for those employees who are carried on the pension rolls, plus the names and addresses and amounts to be paid employees of such department or agency who might become eligible for retirement during the period covered in such budget; and at the time of the drafting of the city budget, the council shall include, in addition to an amount for active employees' salaries or wages, the amounts for those employees who are carried on the pension roll, plus the amount for those employees who might become eligible for retirement during the period covered in such budget. The payment of the pension benefits of this article shall be made at the same time and by the same proceedings as salaries and wages are paid for active employees except as herein otherwise provided. The name and address of each employee receiving benefits under the provisions of this article, together with the amount of pension to be received at each payment by each such employee, shall be filed in the office of the city treasurer.

(46 Del. L. ch. 237, § 7; Code 1968, § 28A-9)

Sec. 39-40. - Pension benefits—Generally.

(a)

Any pension payable under this article shall be subject to the limitation that the monthly pension payment shall not exceed $250.00 nor be less than $150.00. The monthly pension payment shall be 1/40 of the monthly retiring base pay, multiplied by the number of years, a fractional period of six months or more shall be counted as one year and less than six months shall not be counted, which the employee shall have served in covered employment during the period that ends on the date of retirement and includes no interruptions.

(b)

Monthly retiring base salary means the salary for covered employment paid to the employee for those 60 months of covered employment which are most nearly consecutive and during which the employee received the highest salary or wage divided by 60. For the purpose of this section, a vacation allowed an employee shall be regarded as time spent in covered employment.

(c)

Notwithstanding the provisions of this section or of any other provision of this article II, from and after July 1, 1998, the minimum threshold benefit for any plan participant shall be $3,700.00, regardless of whether the benefit is paid to a pensioner under this plan or to a surviving spouse of a plan participant. The provisions of this subsection (c) shall not apply to any pensioner or to any surviving spouse of any pensioner first receiving a benefit under this article after July 1, 1997, nor shall the said provisions apply to any pensioners or surviving spouses who are entitled to benefits under this article II ("Plan I") and article VI ("Plan III") combined.

(46 Del. L. ch. 237, § 5; 47 Del. L. ch. 257, § 2; 49 Del. L. ch. 230, § 5; 51 Del. L. ch. 159, §§ 1, 3; 51 Del. L. ch. 165, § 2; Code 1968, § 28A-10; Ord. No. 98-066(sub 1), § 1, 6-11-98)

Sec. 39-41. - Same—Former employees.

Any person living on July 1, 1947, who has been employed by the agencies providing for covered employment, and who is not now so employed, but who had been so employed continuously without any interruptions, except allowable interruptions as provided in section 39-34, for 20 years or more any time prior to July 1, 1947, has been retired without pay, and has been separated from employment through no fault of his own, shall receive, on and after his 65th birthday, the pension benefits provided for by this article to the same extent as other present, or retired employees.

(50 Del. L. ch. 626, § 1; Code 1968, § 28A-11)

Sec. 39-42. - Same—Joint employees with county.

(a)

The monthly retirement and disability benefits for such employees as shall regularly receive part of their compensation from the city and the county or in alternate periods shall receive regular compensation from the city or the county, shall be one-half of the monthly retiring base pay, divided by 40, multiplied by the number of years in which such employee shall have served in covered employment. In case the total combined monthly retirement or disability benefits calculated under the provisions of this article and the act for the retirement of employees of the county is less than $150.00 or more than $250.00, then in lieu of such payment as calculated in this section, the employee shall receive under this chapter not less than $75.00 and not more than $125.00 as a monthly retirement or disability benefit.

(b)

The provisions of this section shall be deemed to be an exception to section 39-35 insofar as it applies to receive retirement and disability benefits from the county by employees who are alternately or jointly employed by the city and the county, in covered employment, and who receive regular salary or wages alternately or jointly from the treasurer of the city and/or the treasurer of the county, and such employees shall receive retirement and disability benefits in accordance with the provisions of this section.

(46 Del. L. ch. 237, § 15; 47 Del. L. ch. 257, § 4; 51 Del. L. ch. 159, § 4; Code 1968, § 28A-12)

Sec. 39-43. - Same—Surviving spouse.

The surviving spouse of any employee who has retired or become eligible to retire under this article shall, until death or remarriage of such surviving spouse, receive a pension equal to one-half the amount which:

(1)

A retired employee was or shall be receiving at the time of his death; or

(2)

An unretired employee was or shall be entitled to receive if he had retired on the day of his death.

(53 Del. L. ch. 317, § 1; Code 1968, § 28A-13)

Sec. 39-44. - Permitted employment.

Any person, while receiving a pension under this article, may also be employed by the city. The surviving spouse of any pensioner, while receiving a pension benefit under this article, may be employed by the city. The authorization regarding employment by the city, as provided herein and in section 39-4 of this chapter, shall be made applicable to any person or surviving spouse, receiving a pension benefit on and after September 30, 1996.

(46 Del. L. ch. 237, § 12; Code 1968, § 28A-14; Ord. No. 97-093, § 1, 12-4-97)

Editor's note—

Ordinance No. 97-093, § 1, adopted December 4, 1997, amended § 39-44 to read as herein set out. Formerly, such section pertained to prohibited employment.

Sec. 39-45. - Disability pension.

(a)

An employee who shall become disabled while in covered employment and after having served in covered employment for at least 15 years during the period that ends on the inception of such disability and that includes no interruptions from continuous covered employment, except allowable interruptions, so as to be prevented by such disability from performing his active duties, may be retired on a disability pension. Such disabled employee shall be kept on the active payroll during the remainder of the calendar month in which such disability shall begin and for the next ensuing three months. At the end of such third calendar month, such disabled employee shall be retired and shall receive a pension calculated in accordance with section 39-40 and payable during the subsequent uninterrupted continuance of such disability until the date when such disabled employee would otherwise become eligible for retirement on pension in accordance with section 39-36; provided, however, that if the retired employee while so disabled shall engage in any gainful occupation or business, then such disability pension shall be reduced by the excess, if any, of the compensation or profit earned from such occupation or business over one-half of the salary or wages last received by such employee for active service in covered employment. If such disability shall continue until the date when such disabled employee would otherwise become eligible for retirement on pension in accordance with section 39-36, then the disability pension shall cease but such disabled employee shall simultaneously enter upon the pension provided by section 39-40

(b)

The provisions relating to payment of disability pension as provided in section 39-40 shall not apply if the disabled employee receives compensation equal to or in excess of the benefits provided by this article pursuant to the provisions of 19 Del. C. ch. 23 (§ 2301 et seq.) (workers' compensation law). If the amount of compensation received pursuant to such law by any disabled employee is less than the amount he would receive under the provisions of section 39-40, then an amount equal to the difference shall be paid to such employee as disability pension.

(c)

Decision as to whether such disability exists or continues shall be by majority vote of the arbitration commission hereinafter created. The arbitration commission shall, at least once a year or more often, at its discretion, while the disabled employee is receiving disability pension, require such disabled employee to furnish satisfactory proof of the continuance of such disability. Whenever, in the opinion of the arbitration commission, it shall appear that such employee has recovered to the extent of being able to perform his active duties, the arbitration commission shall so notify the employee and shall also notify the department or agency wherein such employee was employed; whereupon the employee shall be required to resume active service and no further pension payments shall be made under the provisions of this section for such disability.

(d)

The period for which the disability pension shall have been paid shall be considered an allowable interruption which is allowable in addition to the allowable interruptions in determining subsequent eligibility for retirement on pension under section 39-36

(46 Del. L. ch. 237, § 6; 47 Del. L. ch. 257, § 3; 51 Del. L. ch. 159, § 1; Code 1968, § 28A-15)

Sec. 39-46. - Increases in benefits; social security benefits.

(a)

If an employee while in covered employment shall become eligible for old age insurance benefits, as such term is used in the federal social security act, the amount to which the employee upon retirement shall be eligible to receive under the provisions of this article shall be reduced to the extent of 50 percent of such old age insurance benefits paid to the pensioner until June 30, 1964; thereafter benefits shall not be reduced by reason of such old age insurance benefits paid to the pensioner.

(b)

All increases in benefits resulting from the passage of this article shall apply to all persons receiving benefits pursuant to this article on July 1, 1962, in addition to all those persons who become eligible for benefits under this article on or after July 1, 1962. No person shall have his benefits reduced by reason of the passage or application of this article.

(53 Del. L. ch. 150, § 1; Code 1968, § 28A-16)

Sec. 39-47. - Benefits not subject to attachment, income tax, etc.

The pension benefits mentioned in this article shall not be subject to attachment or execution, nor to any state or local income tax, shall be payable only to the beneficiary designated, and shall not be subject to assignment or transfer.

(46 Del. L. ch. 237, § 13; Code 1968, § 28A-17)

Sec. 39-48. - Arbitration commission.

For the purpose of settling any controversy that may arise out of the administration of this article, there is hereby created an arbitration commission consisting of three persons, not more than two of whom shall be of the same political party, to be appointed by the mayor, subject to confirmation by the council, for a term of four years. The commission shall adjudicate such controversy at a time and place to be fixed by such commission, after due notice in writing has been given to all interested parties at least ten days prior to the date of hearing; the commission shall have power to administer oaths and to do such acts and make such rules in the premises as such commission may deem necessary to carry into effect the provisions of this article. The written concurring decision of any two members of the commission shall be final. The members of the commission shall serve without compensation, but the council shall provide for the payment of the necessary expenses of the commission.

(46 Del. L. ch. 237, § 17; Code 1968, § 28A-18)

Cross reference— Boards, commissions and similar entities, § 2-56 et seq.

Sec. 39-49. - Effective date.

This article shall become effective on July 1, 1947.

(46 Del. L. ch. 237, § 17; Code 1968, § 28A-19)

Secs. 39-50—39-65. - Reserved.