CHAPTER 88. DELAWARE COUNTY AND MUNICIPAL POLICE/FIREFIGHTER PENSION PLAN
§ 8801. Definitions.
As used in this chapter:
(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;
b. Equalized state service if the member elects a unified pension;
c. Service as an employee before the date of affiliation with the Fund by the employer, provided the actuarially-determined
past service cost associated with such service is paid into the Fund on a schedule approved by the Board of Pension Trustees;
and
d. Service with a police department not covered under paragraph (6) of this section by someone who is subsequently employed
as a police officer by a county or municipality in Delaware, which has affiliated with the Fund established by this chapter
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 assumption approved by the board and the individual's attained age
and final average compensation.
(4) "Dependent" shall mean a dependent child or dependent parent. A dependent child is a person who is unmarried and either
has not attained age 18, or has attained age 18 but not age 22 and is attending school on a full-time basis, or has attained
age 18 and is permanently disabled as the result of a disability which began before the dependent attained age 18. A dependent
parent is the parent of a member who was receiving at least one half of the support from the member at the time of the member's
death.
(5) "Employee" shall mean:
a. An individual who is employed on a full-time basis as a police officer by a county or municipality in Delaware which has
affiliated with the Fund established by this chapter; or
b. An individual who is employed on a full-time basis as a uniformed firefighter by the City of Wilmington after affiliation
by the City of Wilmington with the Fund established by this chapter.
(6) "Equalized state service" shall mean:
a. Years of service as an "employee" as defined in § 5501(e)(1) and (2) 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 § 5551(5) of Title 29, multiplied by 25/30, provided that the individual
is not accruing nor collecting benefits under Chapter 55A of Title 29. It shall not include service for which the employee
has received the withdrawal benefit provided by § 5580 of Title 29, or the refund provided by § 5573(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 § 8351(5) of this title, multiplied by 25/25, provided that the individual
is not accruing nor collecting benefits under subchapter III of Chapter 83 of this title. It shall not include service for
which the employee has received the withdrawal benefit provided by § 8374 of this title, or the refund provided by § 8364(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 for services rendered during those 36 months, in the years of credited service in which the compensation was highest.
(8) The clause "for which the member 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 the wage credits under
the Federal Social Security Act (42 U.S.C. § 301 et seq.), based on the final average compensation and 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.
(9) "Fund" shall mean the Fund established by § 8843 of this title.
(10) "Inactive member" shall mean a member who is an employee on or after the member:
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 contributions.
(11) "Member" shall mean a person who is an employee on or after the date the employer affiliates with the Fund.
(12) "Normal retirement date" shall mean the date at which a member is eligible for a service pension pursuant to § 8813(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.
(13) "Partial disability" shall mean a medically determined physical or mental impairment which renders the member unable
to function as a police officer and which is reasonably expected to last at least 12 months.
(14) "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 on file 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 and 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).
(15) "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 chapter.
(16) "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.
64 Del. Laws, c. 445, § 1; 65 Del. Laws, c. 91, § 1; 67 Del. Laws, c. 86, § 2; 67 Del. Laws, c. 327, § 2; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 43, § 1.;
§ 8802. Employment of pensioners.
An individual shall not receive a service or disability pension under this chapter for any month during which the individual
is an employee as defined in § 8801 of this title, unless:
(1) The individual is a police officer who has retired from 1 county or municipal employer and has been appointed by the executive
branch and confirmed by the legislative branch of a different county or municipal employer participating in the County Municipal
Police/Firefighter Pension Plan; or
(2) The individual is a temporary employee whose earnings from such employment do not exceed the maximum allowed by Social
Security without affecting Social Security benefits; and
(3) The individual's employment under paragraphs (1) and (2) of this section is not pension creditable service time and may
not be used to earn any retirement benefits in the Delaware County and Municipal Police/Firefighter Pension Plan.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 407, § 1.;
§ 8803. Garnishment and assignment of benefits prohibited.
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.
64 Del. Laws, c. 445, § 1; 71 Del. Laws, c. 337, § 2.;
§ 8804. Waiver of benefits.
Any individual entitled to any benefits under this chapter may decline to accept all or any part of such benefits by a waiver
signed and filed with the Board. Such waiver may be revoked in writing at any time, but no payment of the benefits waived
shall be made covering the period during which such waiver was in effect.
64 Del. Laws, c. 445, § 1.;
§ 8805. Optional participation of counties and municipalities.
Any county or municipality may elect to participate in the County and Municipal Police/Firefighter Pension Plan beginning
July 1 of any year on or after July 1, 1984. Application to participate shall be by resolution approved by the governing body
of the county or municipality and shall be submitted to the Board in such form as the Board shall determine not later than
90 days prior to the date participation is to begin, except such time limit may be reduced by the Board. Any such application,
upon approval by the Board, shall be irrevocable. Each participating county and municipality shall provide such information
to the Board as it may require for the administration of this chapter.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 327, § 3.;
§§ 8806-8810. [Reserved.]
§ 8811. Mandatory retirement.
A member shall retire on the member's mandatory retirement date as established by the employer.
64 Del. Laws, c. 445, § 1; 75 Del. Laws, c. 133, § 8.;
§ 8812. Retirement option.
When the member applies for a pension, the member shall choose either a unified pension or an ordinary pension.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 86, § 10; 70 Del. Laws, c. 186, § 1.;
§ 8813. Eligibility for service pension.
(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 5 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 5 years of credited service, and has retired under the provisions of § 8811 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 the provisions of this chapter 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 chapter.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 143, § 1; 75 Del. Laws, c. 133, § 9; 76 Del. Laws, c. 214, § 1.;
§ 8814. Vesting rights; return to service.
(a) A member who has 5 years of credited service shall have a vested right to a service pension.
(b) If a member who has less than 5 years of credited service ceases to be an employee, the 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 a state pension plan which provides for a unified state service pension and subsequently acquires
5 years of credited service; and provided that, if the member has withdrawn that member's own contributions, the member repays
them 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 chapter.
(d) A former employee's vested right shall be forfeited upon application for a refund of accumulated contribution.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 86, § 11; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 133, § 7; 76 Del. Laws, c. 214, § 1.;
§ 8815. Eligibility for disability pension.
(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/firefighter, 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 police officer 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.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 327, § 4; 70 Del. Laws, c. 389, § 1.;
§ 8816. Payment of service pension.
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.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1.;
§ 8817. Payment of disability pension.
(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 council or municipality 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.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1.;
§ 8818. Amount of ordinary service pension.
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.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 133, § 1.;
§ 8819. Amount of unified service, disability or survivor pension.
The amount of the unified pension payable to an employee, former employee or survivor shall be the sum of the following:
(1) The amount computed according to this chapter, exclusive of service credited under § 8801(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 subchapter III of Chapter 83 of this title.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 86, § 8.;
§ 8820. Amount of duty-connected disability pension.
(a) The duty-connected total disability pension shall by 75% of final average compensation plus 10% of final average compensation
for each dependent during the period of dependency, not to exceed a total of 25% of final average 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 final average compensation.
(c) Medical costs made necessary by reason of duty-connected disability which are in excess of those amounts paid by any health
care coverage or worker's compensation shall be paid by the Fund. Payments under this subsection will be paid upon the filing
of a claim in a form prescribed by the Board.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 133, §§ 2, 3.;
§ 8821. Amount of ordinary disability pension.
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 final coverage compensation plus 5% of final average
compensation for each dependent during the period of dependency, not to exceed a total of 20% of final average compensation
for all dependents; and
(2) In the case of partial disability, the minimum pension shall be 30% of final average compensation.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 133, § 4.;
§ 8822. Ordinary survivor's pension.
(a) Upon the death of a member in service, a monthly survivor's pension shall be payable to the primary survivor equal to
one half of the member's final average compensation.
(b) Upon the death of a retired member, a monthly survivor's pension shall be payable to the primary survivor and surviving
dependents equal to one half 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.
(c) 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 or marries, it shall become payable in the following month to the next primary survivor as
defined in § 8801(13) of this title or cease with that month in the absence of the eligible dependents. If payable to a child
who dies or fails to meet the conditions of eligibility in § 8801(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.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 86, § 16; 70 Del. Laws, c. 186, § 1.;
§ 8823. Death benefit.
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.
64 Del. Laws, c. 445, § 1.;
§ 8824. Withdrawal benefit.
(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.
(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 a refund of accumulated contributions with interest. Refund of such contributions
shall extinguish all rights to benefits under this chapter.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1.;
§ 8825. Adjustment of benefits [Subsection (c) effective upon meeting requirements of 77 Del. Laws, c. 232, § 2.]
(a) A pension payable under this chapter 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 monthly service pension, disability pension or survivor pension based on a former service or disability pension which
is payable on July 7, 2005, shall be increased effective July 1, 2005, by the amount of difference between the pensioner's
computed benefit under this chapter of this title, as effective July 1, 2005, less the benefit previously awarded under this
chapter of this title.
(c) [Subsection (c) effective upon meeting requirements of 77 Del. Laws, c. 232, § 2.] The value of lost compensation as a
result of mandatory leave without pay not associated with disciplinary action may be added to an employee's final average
compensation for the period in time the employee would have been paid. The employer will pay to the Fund, on or before the
date of issuance of the individual's first benefit check, a single lump sum payment equal to the sum of the employee and employer
contributions that would have been paid into the fund based on the value of lost compensation.
64 Del. Laws, c. 445, § 1; 75 Del. Laws, c. 133, § 6; 77 Del. Laws, c. 232, § 1.;
§ 8826. Application for benefits.
(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 chapter or to authorize the Board to procure such information.
The Board may withhold payment of any pension under this chapter, 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.
64 Del. Laws, c. 445, § 1; 77 Del. Laws, c. 408, § 4.;
§§ 8827-8840. [Reserved.]
§ 8841. Member contributions.
(a) Effective January 1, 2006, member contributions to the fund shall be 7% of monthly compensation.
(b) An employee can repay a withdrawal benefit using a rollover distribution from:
(1) A direct rollover of an eligible rollover distribution from:
a. A qualified plan described in § 401(a) of the United States Internal Revenue Code [26 U.S.C. § 401(a)];
b. An annuity contract described in § 403(b) of the United States Internal Revenue Code [26 U.S.C. § 403(b)]; or
c. An eligible plan under § 457(b) of the United States Internal Revenue Code [26 U.S.C. § 457(b)].
(2) A participant contribution of an eligible rollover distribution from:
a. A qualified plan described in § 401(a) of the United States Internal Revenue Code [26 U.S.C. § 401(a)];
b. An annuity contract described in § 403(b) of the United States Internal Revenue Code [26 U.S.C. § 403(b)]; or
c. An eligible plan under § 457(b) of the United States Internal Revenue Code [26 U.S.C. § 457(b)].
(3) A participant rollover contribution of the portion of a distribution from an individual retirement account or annuity
described in § 408 of the United States Internal Revenue Code [26 U.S.C. § 408] that is eligible to be rolled over and would
otherwise be includible in gross income.
64 Del. Laws, c. 445, § 1; 72 Del. Laws, c. 143, § 2; 73 Del. Laws, c. 419, §§ 4, 5; 75 Del. Laws, c. 133, § 5.;
§ 8842. Employer contributions.
The contribution of the county or municipality for each fiscal year shall be the percentage of covered payroll approved by
the Board on the basis of the most recent actuarial valuation and shall equal (i) the normal cost; plus (ii) adjustments for
actuarial gains and losses or increases in benefits adopted on or subsequent to participation; plus (iii) administrative costs.
64 Del. Laws, c. 445, § 1.;
§ 8843. Fund established.
There shall be established a County and Municipal Police/Firefighter Retirement Fund, hereinafter referred to as the "Fund,"
separate and distinct from the fund established under subchapters II and III of Chapter 83 of this title, to which county
or municipal 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.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 327, § 5; 71 Del. Laws, c. 121, § 9; 76 Del. Laws, c. 279, § 11.;
§ 8844. Employer pickup of member contributions.
(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 § 8841
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, § 6.;
§ 8845. Payment of benefits.
Benefits shall be due and payable under this chapter only to the extent provided in this chapter, and neither the State nor
the County and Municipal Police/Firefighter Retirement Fund shall be liable for any amount in excess of such sums.
CHAPTER 88. DELAWARE COUNTY AND MUNICIPAL POLICE/FIREFIGHTER PENSION PLAN
§ 8801. Definitions.
As used in this chapter:
(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;
b. Equalized state service if the member elects a unified pension;
c. Service as an employee before the date of affiliation with the Fund by the employer, provided the actuarially-determined
past service cost associated with such service is paid into the Fund on a schedule approved by the Board of Pension Trustees;
and
d. Service with a police department not covered under paragraph (6) of this section by someone who is subsequently employed
as a police officer by a county or municipality in Delaware, which has affiliated with the Fund established by this chapter
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 assumption approved by the board and the individual's attained age
and final average compensation.
(4) "Dependent" shall mean a dependent child or dependent parent. A dependent child is a person who is unmarried and either
has not attained age 18, or has attained age 18 but not age 22 and is attending school on a full-time basis, or has attained
age 18 and is permanently disabled as the result of a disability which began before the dependent attained age 18. A dependent
parent is the parent of a member who was receiving at least one half of the support from the member at the time of the member's
death.
(5) "Employee" shall mean:
a. An individual who is employed on a full-time basis as a police officer by a county or municipality in Delaware which has
affiliated with the Fund established by this chapter; or
b. An individual who is employed on a full-time basis as a uniformed firefighter by the City of Wilmington after affiliation
by the City of Wilmington with the Fund established by this chapter.
(6) "Equalized state service" shall mean:
a. Years of service as an "employee" as defined in § 5501(e)(1) and (2) 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 § 5551(5) of Title 29, multiplied by 25/30, provided that the individual
is not accruing nor collecting benefits under Chapter 55A of Title 29. It shall not include service for which the employee
has received the withdrawal benefit provided by § 5580 of Title 29, or the refund provided by § 5573(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 § 8351(5) of this title, multiplied by 25/25, provided that the individual
is not accruing nor collecting benefits under subchapter III of Chapter 83 of this title. It shall not include service for
which the employee has received the withdrawal benefit provided by § 8374 of this title, or the refund provided by § 8364(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 for services rendered during those 36 months, in the years of credited service in which the compensation was highest.
(8) The clause "for which the member 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 the wage credits under
the Federal Social Security Act (42 U.S.C. § 301 et seq.), based on the final average compensation and 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.
(9) "Fund" shall mean the Fund established by § 8843 of this title.
(10) "Inactive member" shall mean a member who is an employee on or after the member:
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 contributions.
(11) "Member" shall mean a person who is an employee on or after the date the employer affiliates with the Fund.
(12) "Normal retirement date" shall mean the date at which a member is eligible for a service pension pursuant to § 8813(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.
(13) "Partial disability" shall mean a medically determined physical or mental impairment which renders the member unable
to function as a police officer and which is reasonably expected to last at least 12 months.
(14) "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 on file 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 and 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).
(15) "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 chapter.
(16) "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.
64 Del. Laws, c. 445, § 1; 65 Del. Laws, c. 91, § 1; 67 Del. Laws, c. 86, § 2; 67 Del. Laws, c. 327, § 2; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 43, § 1.;
§ 8802. Employment of pensioners.
An individual shall not receive a service or disability pension under this chapter for any month during which the individual
is an employee as defined in § 8801 of this title, unless:
(1) The individual is a police officer who has retired from 1 county or municipal employer and has been appointed by the executive
branch and confirmed by the legislative branch of a different county or municipal employer participating in the County Municipal
Police/Firefighter Pension Plan; or
(2) The individual is a temporary employee whose earnings from such employment do not exceed the maximum allowed by Social
Security without affecting Social Security benefits; and
(3) The individual's employment under paragraphs (1) and (2) of this section is not pension creditable service time and may
not be used to earn any retirement benefits in the Delaware County and Municipal Police/Firefighter Pension Plan.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 407, § 1.;
§ 8803. Garnishment and assignment of benefits prohibited.
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.
64 Del. Laws, c. 445, § 1; 71 Del. Laws, c. 337, § 2.;
§ 8804. Waiver of benefits.
Any individual entitled to any benefits under this chapter may decline to accept all or any part of such benefits by a waiver
signed and filed with the Board. Such waiver may be revoked in writing at any time, but no payment of the benefits waived
shall be made covering the period during which such waiver was in effect.
64 Del. Laws, c. 445, § 1.;
§ 8805. Optional participation of counties and municipalities.
Any county or municipality may elect to participate in the County and Municipal Police/Firefighter Pension Plan beginning
July 1 of any year on or after July 1, 1984. Application to participate shall be by resolution approved by the governing body
of the county or municipality and shall be submitted to the Board in such form as the Board shall determine not later than
90 days prior to the date participation is to begin, except such time limit may be reduced by the Board. Any such application,
upon approval by the Board, shall be irrevocable. Each participating county and municipality shall provide such information
to the Board as it may require for the administration of this chapter.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 327, § 3.;
§§ 8806-8810. [Reserved.]
§ 8811. Mandatory retirement.
A member shall retire on the member's mandatory retirement date as established by the employer.
64 Del. Laws, c. 445, § 1; 75 Del. Laws, c. 133, § 8.;
§ 8812. Retirement option.
When the member applies for a pension, the member shall choose either a unified pension or an ordinary pension.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 86, § 10; 70 Del. Laws, c. 186, § 1.;
§ 8813. Eligibility for service pension.
(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 5 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 5 years of credited service, and has retired under the provisions of § 8811 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 the provisions of this chapter 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 chapter.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 143, § 1; 75 Del. Laws, c. 133, § 9; 76 Del. Laws, c. 214, § 1.;
§ 8814. Vesting rights; return to service.
(a) A member who has 5 years of credited service shall have a vested right to a service pension.
(b) If a member who has less than 5 years of credited service ceases to be an employee, the 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 a state pension plan which provides for a unified state service pension and subsequently acquires
5 years of credited service; and provided that, if the member has withdrawn that member's own contributions, the member repays
them 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 chapter.
(d) A former employee's vested right shall be forfeited upon application for a refund of accumulated contribution.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 86, § 11; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 133, § 7; 76 Del. Laws, c. 214, § 1.;
§ 8815. Eligibility for disability pension.
(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/firefighter, 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 police officer 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.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 327, § 4; 70 Del. Laws, c. 389, § 1.;
§ 8816. Payment of service pension.
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.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1.;
§ 8817. Payment of disability pension.
(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 council or municipality 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.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1.;
§ 8818. Amount of ordinary service pension.
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.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 133, § 1.;
§ 8819. Amount of unified service, disability or survivor pension.
The amount of the unified pension payable to an employee, former employee or survivor shall be the sum of the following:
(1) The amount computed according to this chapter, exclusive of service credited under § 8801(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 subchapter III of Chapter 83 of this title.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 86, § 8.;
§ 8820. Amount of duty-connected disability pension.
(a) The duty-connected total disability pension shall by 75% of final average compensation plus 10% of final average compensation
for each dependent during the period of dependency, not to exceed a total of 25% of final average 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 final average compensation.
(c) Medical costs made necessary by reason of duty-connected disability which are in excess of those amounts paid by any health
care coverage or worker's compensation shall be paid by the Fund. Payments under this subsection will be paid upon the filing
of a claim in a form prescribed by the Board.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 133, §§ 2, 3.;
§ 8821. Amount of ordinary disability pension.
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 final coverage compensation plus 5% of final average
compensation for each dependent during the period of dependency, not to exceed a total of 20% of final average compensation
for all dependents; and
(2) In the case of partial disability, the minimum pension shall be 30% of final average compensation.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 133, § 4.;
§ 8822. Ordinary survivor's pension.
(a) Upon the death of a member in service, a monthly survivor's pension shall be payable to the primary survivor equal to
one half of the member's final average compensation.
(b) Upon the death of a retired member, a monthly survivor's pension shall be payable to the primary survivor and surviving
dependents equal to one half 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.
(c) 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 or marries, it shall become payable in the following month to the next primary survivor as
defined in § 8801(13) of this title or cease with that month in the absence of the eligible dependents. If payable to a child
who dies or fails to meet the conditions of eligibility in § 8801(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.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 86, § 16; 70 Del. Laws, c. 186, § 1.;
§ 8823. Death benefit.
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.
64 Del. Laws, c. 445, § 1.;
§ 8824. Withdrawal benefit.
(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.
(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 a refund of accumulated contributions with interest. Refund of such contributions
shall extinguish all rights to benefits under this chapter.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1.;
§ 8825. Adjustment of benefits [Subsection (c) effective upon meeting requirements of 77 Del. Laws, c. 232, § 2.]
(a) A pension payable under this chapter 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 monthly service pension, disability pension or survivor pension based on a former service or disability pension which
is payable on July 7, 2005, shall be increased effective July 1, 2005, by the amount of difference between the pensioner's
computed benefit under this chapter of this title, as effective July 1, 2005, less the benefit previously awarded under this
chapter of this title.
(c) [Subsection (c) effective upon meeting requirements of 77 Del. Laws, c. 232, § 2.] The value of lost compensation as a
result of mandatory leave without pay not associated with disciplinary action may be added to an employee's final average
compensation for the period in time the employee would have been paid. The employer will pay to the Fund, on or before the
date of issuance of the individual's first benefit check, a single lump sum payment equal to the sum of the employee and employer
contributions that would have been paid into the fund based on the value of lost compensation.
64 Del. Laws, c. 445, § 1; 75 Del. Laws, c. 133, § 6; 77 Del. Laws, c. 232, § 1.;
§ 8826. Application for benefits.
(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 chapter or to authorize the Board to procure such information.
The Board may withhold payment of any pension under this chapter, 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.
64 Del. Laws, c. 445, § 1; 77 Del. Laws, c. 408, § 4.;
§§ 8827-8840. [Reserved.]
§ 8841. Member contributions.
(a) Effective January 1, 2006, member contributions to the fund shall be 7% of monthly compensation.
(b) An employee can repay a withdrawal benefit using a rollover distribution from:
(1) A direct rollover of an eligible rollover distribution from:
a. A qualified plan described in § 401(a) of the United States Internal Revenue Code [26 U.S.C. § 401(a)];
b. An annuity contract described in § 403(b) of the United States Internal Revenue Code [26 U.S.C. § 403(b)]; or
c. An eligible plan under § 457(b) of the United States Internal Revenue Code [26 U.S.C. § 457(b)].
(2) A participant contribution of an eligible rollover distribution from:
a. A qualified plan described in § 401(a) of the United States Internal Revenue Code [26 U.S.C. § 401(a)];
b. An annuity contract described in § 403(b) of the United States Internal Revenue Code [26 U.S.C. § 403(b)]; or
c. An eligible plan under § 457(b) of the United States Internal Revenue Code [26 U.S.C. § 457(b)].
(3) A participant rollover contribution of the portion of a distribution from an individual retirement account or annuity
described in § 408 of the United States Internal Revenue Code [26 U.S.C. § 408] that is eligible to be rolled over and would
otherwise be includible in gross income.
64 Del. Laws, c. 445, § 1; 72 Del. Laws, c. 143, § 2; 73 Del. Laws, c. 419, §§ 4, 5; 75 Del. Laws, c. 133, § 5.;
§ 8842. Employer contributions.
The contribution of the county or municipality for each fiscal year shall be the percentage of covered payroll approved by
the Board on the basis of the most recent actuarial valuation and shall equal (i) the normal cost; plus (ii) adjustments for
actuarial gains and losses or increases in benefits adopted on or subsequent to participation; plus (iii) administrative costs.
64 Del. Laws, c. 445, § 1.;
§ 8843. Fund established.
There shall be established a County and Municipal Police/Firefighter Retirement Fund, hereinafter referred to as the "Fund,"
separate and distinct from the fund established under subchapters II and III of Chapter 83 of this title, to which county
or municipal 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.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 327, § 5; 71 Del. Laws, c. 121, § 9; 76 Del. Laws, c. 279, § 11.;
§ 8844. Employer pickup of member contributions.
(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 § 8841
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, § 6.;
§ 8845. Payment of benefits.
Benefits shall be due and payable under this chapter only to the extent provided in this chapter, and neither the State nor
the County and Municipal Police/Firefighter Retirement Fund shall be liable for any amount in excess of such sums.
CHAPTER 88. DELAWARE COUNTY AND MUNICIPAL POLICE/FIREFIGHTER PENSION PLAN
§ 8801. Definitions.
As used in this chapter:
(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;
b. Equalized state service if the member elects a unified pension;
c. Service as an employee before the date of affiliation with the Fund by the employer, provided the actuarially-determined
past service cost associated with such service is paid into the Fund on a schedule approved by the Board of Pension Trustees;
and
d. Service with a police department not covered under paragraph (6) of this section by someone who is subsequently employed
as a police officer by a county or municipality in Delaware, which has affiliated with the Fund established by this chapter
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 assumption approved by the board and the individual's attained age
and final average compensation.
(4) "Dependent" shall mean a dependent child or dependent parent. A dependent child is a person who is unmarried and either
has not attained age 18, or has attained age 18 but not age 22 and is attending school on a full-time basis, or has attained
age 18 and is permanently disabled as the result of a disability which began before the dependent attained age 18. A dependent
parent is the parent of a member who was receiving at least one half of the support from the member at the time of the member's
death.
(5) "Employee" shall mean:
a. An individual who is employed on a full-time basis as a police officer by a county or municipality in Delaware which has
affiliated with the Fund established by this chapter; or
b. An individual who is employed on a full-time basis as a uniformed firefighter by the City of Wilmington after affiliation
by the City of Wilmington with the Fund established by this chapter.
(6) "Equalized state service" shall mean:
a. Years of service as an "employee" as defined in § 5501(e)(1) and (2) 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 § 5551(5) of Title 29, multiplied by 25/30, provided that the individual
is not accruing nor collecting benefits under Chapter 55A of Title 29. It shall not include service for which the employee
has received the withdrawal benefit provided by § 5580 of Title 29, or the refund provided by § 5573(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 § 8351(5) of this title, multiplied by 25/25, provided that the individual
is not accruing nor collecting benefits under subchapter III of Chapter 83 of this title. It shall not include service for
which the employee has received the withdrawal benefit provided by § 8374 of this title, or the refund provided by § 8364(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 for services rendered during those 36 months, in the years of credited service in which the compensation was highest.
(8) The clause "for which the member 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 the wage credits under
the Federal Social Security Act (42 U.S.C. § 301 et seq.), based on the final average compensation and 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.
(9) "Fund" shall mean the Fund established by § 8843 of this title.
(10) "Inactive member" shall mean a member who is an employee on or after the member:
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 contributions.
(11) "Member" shall mean a person who is an employee on or after the date the employer affiliates with the Fund.
(12) "Normal retirement date" shall mean the date at which a member is eligible for a service pension pursuant to § 8813(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.
(13) "Partial disability" shall mean a medically determined physical or mental impairment which renders the member unable
to function as a police officer and which is reasonably expected to last at least 12 months.
(14) "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 on file 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 and 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).
(15) "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 chapter.
(16) "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.
64 Del. Laws, c. 445, § 1; 65 Del. Laws, c. 91, § 1; 67 Del. Laws, c. 86, § 2; 67 Del. Laws, c. 327, § 2; 70 Del. Laws, c. 186, § 1; 74 Del. Laws, c. 43, § 1.;
§ 8802. Employment of pensioners.
An individual shall not receive a service or disability pension under this chapter for any month during which the individual
is an employee as defined in § 8801 of this title, unless:
(1) The individual is a police officer who has retired from 1 county or municipal employer and has been appointed by the executive
branch and confirmed by the legislative branch of a different county or municipal employer participating in the County Municipal
Police/Firefighter Pension Plan; or
(2) The individual is a temporary employee whose earnings from such employment do not exceed the maximum allowed by Social
Security without affecting Social Security benefits; and
(3) The individual's employment under paragraphs (1) and (2) of this section is not pension creditable service time and may
not be used to earn any retirement benefits in the Delaware County and Municipal Police/Firefighter Pension Plan.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 407, § 1.;
§ 8803. Garnishment and assignment of benefits prohibited.
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.
64 Del. Laws, c. 445, § 1; 71 Del. Laws, c. 337, § 2.;
§ 8804. Waiver of benefits.
Any individual entitled to any benefits under this chapter may decline to accept all or any part of such benefits by a waiver
signed and filed with the Board. Such waiver may be revoked in writing at any time, but no payment of the benefits waived
shall be made covering the period during which such waiver was in effect.
64 Del. Laws, c. 445, § 1.;
§ 8805. Optional participation of counties and municipalities.
Any county or municipality may elect to participate in the County and Municipal Police/Firefighter Pension Plan beginning
July 1 of any year on or after July 1, 1984. Application to participate shall be by resolution approved by the governing body
of the county or municipality and shall be submitted to the Board in such form as the Board shall determine not later than
90 days prior to the date participation is to begin, except such time limit may be reduced by the Board. Any such application,
upon approval by the Board, shall be irrevocable. Each participating county and municipality shall provide such information
to the Board as it may require for the administration of this chapter.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 327, § 3.;
§§ 8806-8810. [Reserved.]
§ 8811. Mandatory retirement.
A member shall retire on the member's mandatory retirement date as established by the employer.
64 Del. Laws, c. 445, § 1; 75 Del. Laws, c. 133, § 8.;
§ 8812. Retirement option.
When the member applies for a pension, the member shall choose either a unified pension or an ordinary pension.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 86, § 10; 70 Del. Laws, c. 186, § 1.;
§ 8813. Eligibility for service pension.
(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 5 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 5 years of credited service, and has retired under the provisions of § 8811 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 the provisions of this chapter 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 chapter.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 143, § 1; 75 Del. Laws, c. 133, § 9; 76 Del. Laws, c. 214, § 1.;
§ 8814. Vesting rights; return to service.
(a) A member who has 5 years of credited service shall have a vested right to a service pension.
(b) If a member who has less than 5 years of credited service ceases to be an employee, the 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 a state pension plan which provides for a unified state service pension and subsequently acquires
5 years of credited service; and provided that, if the member has withdrawn that member's own contributions, the member repays
them 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 chapter.
(d) A former employee's vested right shall be forfeited upon application for a refund of accumulated contribution.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 86, § 11; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 133, § 7; 76 Del. Laws, c. 214, § 1.;
§ 8815. Eligibility for disability pension.
(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/firefighter, 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 police officer 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.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 327, § 4; 70 Del. Laws, c. 389, § 1.;
§ 8816. Payment of service pension.
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.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1.;
§ 8817. Payment of disability pension.
(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 council or municipality 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.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1.;
§ 8818. Amount of ordinary service pension.
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.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 133, § 1.;
§ 8819. Amount of unified service, disability or survivor pension.
The amount of the unified pension payable to an employee, former employee or survivor shall be the sum of the following:
(1) The amount computed according to this chapter, exclusive of service credited under § 8801(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 subchapter III of Chapter 83 of this title.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 86, § 8.;
§ 8820. Amount of duty-connected disability pension.
(a) The duty-connected total disability pension shall by 75% of final average compensation plus 10% of final average compensation
for each dependent during the period of dependency, not to exceed a total of 25% of final average 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 final average compensation.
(c) Medical costs made necessary by reason of duty-connected disability which are in excess of those amounts paid by any health
care coverage or worker's compensation shall be paid by the Fund. Payments under this subsection will be paid upon the filing
of a claim in a form prescribed by the Board.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 133, §§ 2, 3.;
§ 8821. Amount of ordinary disability pension.
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 final coverage compensation plus 5% of final average
compensation for each dependent during the period of dependency, not to exceed a total of 20% of final average compensation
for all dependents; and
(2) In the case of partial disability, the minimum pension shall be 30% of final average compensation.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 133, § 4.;
§ 8822. Ordinary survivor's pension.
(a) Upon the death of a member in service, a monthly survivor's pension shall be payable to the primary survivor equal to
one half of the member's final average compensation.
(b) Upon the death of a retired member, a monthly survivor's pension shall be payable to the primary survivor and surviving
dependents equal to one half 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.
(c) 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 or marries, it shall become payable in the following month to the next primary survivor as
defined in § 8801(13) of this title or cease with that month in the absence of the eligible dependents. If payable to a child
who dies or fails to meet the conditions of eligibility in § 8801(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.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 86, § 16; 70 Del. Laws, c. 186, § 1.;
§ 8823. Death benefit.
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.
64 Del. Laws, c. 445, § 1.;
§ 8824. Withdrawal benefit.
(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.
(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 a refund of accumulated contributions with interest. Refund of such contributions
shall extinguish all rights to benefits under this chapter.
64 Del. Laws, c. 445, § 1; 70 Del. Laws, c. 186, § 1.;
§ 8825. Adjustment of benefits [Subsection (c) effective upon meeting requirements of 77 Del. Laws, c. 232, § 2.]
(a) A pension payable under this chapter 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 monthly service pension, disability pension or survivor pension based on a former service or disability pension which
is payable on July 7, 2005, shall be increased effective July 1, 2005, by the amount of difference between the pensioner's
computed benefit under this chapter of this title, as effective July 1, 2005, less the benefit previously awarded under this
chapter of this title.
(c) [Subsection (c) effective upon meeting requirements of 77 Del. Laws, c. 232, § 2.] The value of lost compensation as a
result of mandatory leave without pay not associated with disciplinary action may be added to an employee's final average
compensation for the period in time the employee would have been paid. The employer will pay to the Fund, on or before the
date of issuance of the individual's first benefit check, a single lump sum payment equal to the sum of the employee and employer
contributions that would have been paid into the fund based on the value of lost compensation.
64 Del. Laws, c. 445, § 1; 75 Del. Laws, c. 133, § 6; 77 Del. Laws, c. 232, § 1.;
§ 8826. Application for benefits.
(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 chapter or to authorize the Board to procure such information.
The Board may withhold payment of any pension under this chapter, 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.
64 Del. Laws, c. 445, § 1; 77 Del. Laws, c. 408, § 4.;
§§ 8827-8840. [Reserved.]
§ 8841. Member contributions.
(a) Effective January 1, 2006, member contributions to the fund shall be 7% of monthly compensation.
(b) An employee can repay a withdrawal benefit using a rollover distribution from:
(1) A direct rollover of an eligible rollover distribution from:
a. A qualified plan described in § 401(a) of the United States Internal Revenue Code [26 U.S.C. § 401(a)];
b. An annuity contract described in § 403(b) of the United States Internal Revenue Code [26 U.S.C. § 403(b)]; or
c. An eligible plan under § 457(b) of the United States Internal Revenue Code [26 U.S.C. § 457(b)].
(2) A participant contribution of an eligible rollover distribution from:
a. A qualified plan described in § 401(a) of the United States Internal Revenue Code [26 U.S.C. § 401(a)];
b. An annuity contract described in § 403(b) of the United States Internal Revenue Code [26 U.S.C. § 403(b)]; or
c. An eligible plan under § 457(b) of the United States Internal Revenue Code [26 U.S.C. § 457(b)].
(3) A participant rollover contribution of the portion of a distribution from an individual retirement account or annuity
described in § 408 of the United States Internal Revenue Code [26 U.S.C. § 408] that is eligible to be rolled over and would
otherwise be includible in gross income.
64 Del. Laws, c. 445, § 1; 72 Del. Laws, c. 143, § 2; 73 Del. Laws, c. 419, §§ 4, 5; 75 Del. Laws, c. 133, § 5.;
§ 8842. Employer contributions.
The contribution of the county or municipality for each fiscal year shall be the percentage of covered payroll approved by
the Board on the basis of the most recent actuarial valuation and shall equal (i) the normal cost; plus (ii) adjustments for
actuarial gains and losses or increases in benefits adopted on or subsequent to participation; plus (iii) administrative costs.
64 Del. Laws, c. 445, § 1.;
§ 8843. Fund established.
There shall be established a County and Municipal Police/Firefighter Retirement Fund, hereinafter referred to as the "Fund,"
separate and distinct from the fund established under subchapters II and III of Chapter 83 of this title, to which county
or municipal 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.
64 Del. Laws, c. 445, § 1; 67 Del. Laws, c. 327, § 5; 71 Del. Laws, c. 121, § 9; 76 Del. Laws, c. 279, § 11.;
§ 8844. Employer pickup of member contributions.
(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 § 8841
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, § 6.;
§ 8845. Payment of benefits.
Benefits shall be due and payable under this chapter only to the extent provided in this chapter, and neither the State nor
the County and Municipal Police/Firefighter Retirement Fund shall be liable for any amount in excess of such sums.
