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TITLE 29

State Government

Public Officers and Employees

CHAPTER 59. MERIT SYSTEM OF PERSONNEL ADMINISTRATION

Subchapter III. Rules

§ 5914. Rules; hearing; adoption.

The Director shall prepare and submit to the Board proposed rules covering the classified service. The rules shall be reviewed by the Board at a public hearing held following public notice. The rules, as proposed by the Director, shall become final upon the completion of the public hearing, unless rejected by a majority of the members appointed to the Board.

29 Del. C. 1953, § 5914; 55 Del. Laws, c. 443, § 1; 69 Del. Laws, c. 436, § 6.;

§ 5915. Classification; uniformity; appeal of classification.

(a) The rules shall provide for the preparation, maintenance and revision of a position classification plan for all positions in the classified service and all merit comparable positions, based upon similarity of duties performed and responsibilities assumed so that uniform qualifications and pay ranges shall apply to all positions in the same classification.

(b) After approval of such maintenance review classifications determination by the Director of the Office of Management and Budget and Controller General, the Director of the Office of Management and Budget shall notify the agency and employee of the results. The maintenance review classification determination shall become effective on the following July 1.

(c) Any maintenance review classification determination may be appealed to the Merit Employee Relations Board by any affected employee or agency within 30 calendar days of notification. The Merit Employee Relations Board shall hear all maintenance review classification appeals before it in chronological order, beginning with the oldest such appeal unless all parties are in agreement with other such arrangements.

(d) Within 10 calendar days of the filing of an appeal, the Board shall assign an independent reviewer, trained in job analysis, to evaluate the merits of the employee's appeal. Within 30 calendar days, the independent reviewer must submit a written independent finding to the Board, and copy to the employee and the Director of the Office of Management and Budget. In unusual circumstances, the Board may authorize the independent reviewer an additional 30 calendar days to complete the review.

(e) The employee and the Director of the Office of Management and Budget shall have 30 calendar days to accept the finding rendered by the independent reviewer and notify the Board.

(f) If the findings of the independent reviewer are accepted by the employee and the Director of the Office of Management and Budget, the Board shall also accept the findings.

(g) If these findings are ignored or disputed by either the employee or the Director of the Office of Management and Budget, the parties shall be notified and permitted to respond and the Board shall hold a hearing on the employee's appeal within 60 calendar days.

(h) At the hearing, the parties may present brief oral argument in support of their position.

(i) The Board shall render a final and binding decision on the matter within 15 calendar days of the hearing. In rendering its decision, the Board shall consider the following criteria:

(1) The findings of the independent reviewer;

(2) The Director's initial determination;

(3) The Director's response to the independent reviewer's findings;

(4) The employee's response to the independent reviewer's findings;

(5) The oral argument;

(6) The consistency with other existing classified positions of a similar nature; and

(7) The minimization of the number of classifications.

(j) The Board shall have the authority to hire a staff of independent reviewers and contract for services in carrying out the provisions of this section.

(k) In the event that the Director of the Office of Management and Budget can demonstrate that sufficient funds are not available to fund the classification decisions rendered by this section, the effective date may be delayed until the beginning of the next fiscal year.

29 Del. C. 1953, § 5915; 55 Del. Laws, c. 443, § 1; 68 Del. Laws, c. 215, § 2; 69 Del. Laws, c. 436, § 9; 70 Del. Laws, c. 271, § 1; 75 Del. Laws, c. 88, §§ 20(6), 21(13), 34; 76 Del. Laws, c. 280, § 135.;

§ 5916. Uniform pay plan; hazardous duty pay.

(a) The rules shall provide for a pay plan for all employees in the classified service, after consultation with state officers and after a public hearing held by the Board. Such pay plan shall become effective only after it has been approved by the Governor after submission to the Governor by the Board and after adequate appropriations to put such plan into effect have been received. Amendments to the pay plan may be made in the same manner. Nothing shall be contained in the pay plan except the salary and wage schedule and each employee in the classified service shall be paid at the rate set forth in the pay plan for the position classification. Any state employees who are not covered under Title 20, who are normally scheduled to work on weekends, and, who are members of the National Guard or United States Reserves shall be afforded the opportunity to reschedule within the same pay cycle their normally scheduled work weekends whenever their National Guard or United States Reserves drill weekend conflicts with their state weekend to work. The employee shall provide the State with 30 days advance notification of their scheduled Guard or Reserve drill weekend.

(b) No agency shall engage a consultant or authorize expenditures of any General or Special Funds for the purpose of studying personnel policies and/or the wage and salary classification of employees without the written authorization of the Director of the Office of Management and Budget and the concurrence of the Controller General.

(c) No state employee whose salary is designated in the annual appropriations act shall receive compensation, whether in wages, salary, wages-in-kind, food allotment bonuses or overtime, from agencies of this State in excess of said salary regardless of the source of funds involved except as provided in §§ 5105(c), 5112(b) and 5123 of this title. In the event that an employee shall receive excess compensation, the amount of the appropriation from the General Fund shall be reduced by the amount of such excessive compensation and the Attorney General shall take such steps as necessary to recover from such employee any such excessive amount as has actually been paid. In the event the "All Other" part of the salary is made up entirely of federal funds and such federal funds are terminated or reduced, that state appropriation is hereby increased to provide the "Total Salary" indicated.

(d) A state employee may perform additional duties for a state agency other than his/her principal employing agency, with the consent of his/her principal employing agency, and may be paid additional compensation, provided such additional duties are not a part of his/her regular duties for the principal employing agency and not rendered during the time paid for by the principal employing agency. All wage payments resulting from the performance of such additional duties, including FLSA overtime, shall be the responsibility of the secondary employing agency unless otherwise authorized by the Director of the Office of Management and Budget.

(e) No employee of any department or agency shall receive hazardous duty pay, except those specifically included in the following paragraphs:

(1) Employees, otherwise qualified, who are employed by the Department of Corrections (or its successor agency).

(2) Employees, otherwise qualified, who are employed by the Delaware Psychiatric Center (or its successor agency) and who are assigned to programs for the criminally insane.

(3) Employees, otherwise qualified, who are employed by the Department of Services for Children, Youth and Their Families and are assigned to work in the Division of Youth Rehabilitative Services facilities.

(4) Casual seasonal employees performing the same job duties as those eligible employees identified in subsections (1), (2), (3), shall also be deemed eligible. The amount of the monthly hazardous duty pay supplement shall be prorated based on the actual hours worked.

(f) Nothing in this section shall be construed or interpreted by the Merit Employee Relations Board or by the Director of the Office of Management and Budget to include hazardous duty pay as coming within the definition of fringe benefits.

29 Del. C. 1953, § 5916; 55 Del. Laws, c. 443, § 1; 56 Del. Laws, c. 376, § 5; 65 Del. Laws, c. 87, § 66; 66 Del. Laws, c. 85, § 196; 67 Del. Laws, c. 47, § 29; 69 Del. Laws, c. 436, § 9; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 550, § 1; 72 Del. Laws, c. 395, § 215; 72 Del. Laws, c. 413, § 1; 73 Del. Laws, c. 310, § 1; 75 Del. Laws, c. 88, §§ 20(6), 21(13), 25(2), 26(2); 77 Del. Laws, c. 327, § 208.;

§ 5917. Competitive recruitment.

(a) The rules shall provide for open competitive recruitment to test the relative fitness of applicants for positions in the classified service. Such recruitment shall be announced publicly at least 7 days prior to the date for filing applications therefore and may be advertised through the press, radio and other media.

(b) The Director of Management and Budget shall maintain a listing of those positions in the classified service that require the administration of a competitive examination. Examinations may be written or oral, or a combination of both, or they may be unassembled examinations, in which case the examining authority may evaluate specialized training and experience. Examinations shall be prepared by the Director of the Office of Management and Budget, after consultation with the appointing authority where appropriate.

29 Del. C. 1953, § 5917; 55 Del. Laws, c. 443, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 88, § 20(6); 76 Del. Laws, c. 124, § 2.;

§ 5918. Promotions.

The rules shall provide for promotions, giving consideration to the applicant's qualifications, performance record, seniority, conduct and, where practicable, to the results of competitive recruitment. Vacancies shall be filled by promotion whenever practicable and in the best interest of the classified service. Any promotional competition for a position funded solely by general funded appropriations, involving 2 or more candidates and a referral list issued by the Director, shall be considered a competitive recruitment under § 5917 of this title.

29 Del. C. 1953, § 5918; 55 Del. Laws, c. 443, § 1; 62 Del. Laws, c. 55, § 1; 76 Del. Laws, c. 124, §§ 3, 4.;

§ 5919. Referral lists.

The rules shall provide for the establishment of referral lists for appointment and promotion. Such lists shall include the names of successful candidates in the order of their relative performance in the particular examinations, except where such lists contain fewer than 31 candidates, in which case the names of the successful candidates may be listed in alphabetical order. In the event that the score of the thirtieth name is tied with other candidates, all tied scores will be placed on the referral list even if it exceeds 30. Vacant positions in pay grades 1-5 will be filled by agency recruitment efforts unless a referral list is required by federal law for that position.

29 Del. C. 1953, § 5919; 55 Del. Laws, c. 443, § 1; 60 Del. Laws, c. 599, § 1; 65 Del. Laws, c. 348, § 11; 70 Del. Laws, c. 272, § 1; 73 Del. Laws, c. 142, § 1; 76 Del. Laws, c. 124, § 5.;

§ 5920. Rejection for unfitness.

The rules shall provide for the rejection of candidates or eligibles who fail to comply with reasonable requirements of the Director in regard to such factors as age, physical condition, training and experience, or who have been guilty of infamous or disgraceful conduct, are addicted to alcohol or to narcotics or have attempted any deception or fraud in connection with an recruitment.

29 Del. C. 1953, § 5920; 55 Del. Laws, c. 443, § 1; 76 Del. Laws, c. 124, § 6.;

§ 5921. Appointment of highest ranking candidates.

The rules shall provide for the appointment of a person standing among the highest 30 on the appropriate referral list, to fill a vacancy, except as provided in § 5919 of this title. In no case shall the rules require the employing agency to give a reason for rejecting names on the list unless all names are rejected. When the appointing authority selects an applicant for hire from the list the applicant may, at the discretion of the appointing authority, start work immediately and be placed on the payroll forthwith and any additional approvals or paperwork required by the rules shall be performed subsequently.

29 Del. C. 1953, § 5921; 55 Del. Laws, c. 443, § 1; 60 Del. Laws, c. 599, § 2; 61 Del. Laws, c. 463, § 1; 69 Del. Laws, c. 291, § 30; 72 Del. Laws, c. 359, § 1; 76 Del. Laws, c. 124, §§ 7, 8.;

§ 5922. Probation.

(a) The rules shall provide for a period of probation before appointment or promotion is made complete and during which period a probationer may be discharged or reduced in class or rank. Probationary employees shall be entitled to receive an appropriate performance report or reports during the probationary period, providing warning of any poor performance.

(b) If the probationary employee's services were unsatisfactory, the probationary employee shall be dropped from the payroll, except in the case of promotional probation in which case the probationer shall be handled per applicable merit rules. If the probationary employee's services were satisfactory or no action taken within the probationary period, the appointment shall be deemed permanent. The determination of the appointing authority shall be final and conclusive.

29 Del. C. 1953, § 5922; 55 Del. Laws, c. 443, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 350, § 86; 76 Del. Laws, c. 80, § 82.;

§ 5923. Emergency employment.

The rules shall provide for emergency employment for not over 30 days, with or without competition, with the consent of the Director.

29 Del. C. 1953, § 5923; 55 Del. Laws, c. 443, § 1; 76 Del. Laws, c. 124, § 9.;

§ 5924. Department of Technology and Information's acceptable use policy.

The Director of the Office of Management and Budget shall ensure that each merit employee signs a copy of the Department of Technology and Information's acceptable use policy and that the signed copy is placed in each employee's personnel file. If an investigation concludes that a merit employee has violated that policy, any discipline resulting in the loss of wages must first be reviewed by the Office of Management and Budget prior to implementation of the discipline.

76 Del. Laws, c. 227, § 2.;

§ 5925. Transfers.

The rules shall provide for transfer from a position in 1 department or agency to a similar position in another department or agency involving similar qualifications, duties, responsibilities and pay range.

29 Del. C. 1953, § 5925; 55 Del. Laws, c. 443, § 1.;

§ 5926. Reinstatement.

The rules shall provide for reinstatement within 2 years, with the approval of the Director, of persons who resign in good standing or who are laid off without fault or delinquency on their part.

29 Del. C. 1953, § 5926; 55 Del. Laws, c. 443, § 1.;

§ 5927. Performance records.

The rules shall provide for the keeping of performance records on all employees in the classified service, which records may be considered in determining salary increases or decreases, promotion, layoffs and reinstatement, demotions, discharges and transfers.

29 Del. C. 1953, § 5927; 55 Del. Laws, c. 443, § 1.;

§ 5928. Layoffs; transfers; reductions.

The rules shall provide for layoffs, transfers or reduction in rank because of lack of funds or work, or abolition of a position, or material change in duties or organization and for reemployment of employees so laid off, giving consideration in each such case to performance record and seniority in service.

29 Del. C. 1953, § 5928; 55 Del. Laws, c. 443, § 1.;

§ 5929. Fines.

The rules shall provide for imposition, as a disciplinary measure, of a fine of not more than 10 days' pay or suspension from the service without pay for not longer than 30 days.

29 Del. C. 1953, § 5929; 55 Del. Laws, c. 443, § 1.;

§ 5930. Discharge; reduction in rank or grade.

The rules shall provide for discharge or reduction in rank or grade for cause after the probationary period for appointment or promotion is completed. The person to be discharged or reduced in rank for cause shall have the right of appeal as set forth in this chapter.

29 Del. C. 1953, § 5930; 55 Del. Laws, c. 443, § 1.;

§ 5931. Grievances.

(a) The rules shall provide for the establishment of a plan for resolving employee grievances and complaints. The final 2 steps of any such plan shall provide for hearings before the Director or the Director's designee and before the Board, respectively, unless a particular grievance is specifically excluded or limited by the Merit Rules. The Director and the Board, at their respective steps in the grievance procedure, shall have the authority to grant back pay, restore any position, benefits or rights denied, place employees in a position they were wrongfully denied, or otherwise make employees whole, under a misapplication of any provision of this chapter or the Merit Rules. The rules shall require that the Board take final action on a grievance within 90 calendar days of submission to the Board. Upon approval of all parties, the 90 days may be extended an additional 30 calendar days.

(b) Should the plan required by subsection (a) of this section provide for various stages, phases or steps to be followed, the failure of the employing department or agency to respond or consider the grievance or complaint within the time required by the rules shall automatically result in the grievance or complaint moving to the next stage, phase or step unless the delay results from an agreement in writing between the employing department or agency and the employee who filed the grievance or complaint, or the employee has indicated in writing to the personnel office of the department or agency his or her opposition to the automatic movement to the next stage, phase or step.

(c) No state employee shall be discharged, threatened or otherwise retaliated against with respect to the terms or conditions of their employment due to the exercise of their rights under the grievance and complaint procedure established under subsection (a) of this section.

(1) An employee who alleges a violation of this subsection may file a written complaint directly to the Human Resource Management Administrator. The employee and the Director or designee may agree to meet and attempt an informal resolution of the complaint, and/or the Director or designee shall hear the complaint and issue a written decision within 45 days of the complaint's receipt. Such decision shall be final and binding on the employee's appointing authority.

(2) Where such decision finds that an individual engaged in conduct prohibited by this subsection, the appointing authority shall initiate appropriate disciplinary action consistent with that decision.

(3) If the complainant employee is not satisfied with the Director or designee's decision, the employee may submit a written appeal to the Merit Employee Relations Board (MERB) within 20 calendar days of receipt of that decision. Such appeal shall be handled and processed in the same manner as other appeals heard by the MERB.

29 Del. C. 1953, § 5931; 55 Del. Laws, c. 443, § 1; 56 Del. Laws, c. 376, § 6; 69 Del. Laws, c. 436, § 7; 70 Del. Laws, c. 541, § 1; 75 Del. Laws, c. 103, § 1; 75 Del. Laws, c. 350, § 84.;

§ 5932. Work schedules.

The rules shall provide for work schedules, call-in, and attendance regulations, rest periods and leaves of absence without pay.

29 Del. C. 1953, § 5932; 56 Del. Laws, c. 376, § 6.;

§ 5933. Leaves.

(a) The rules shall provide for annual, sick and special leaves of absence, with pay or at reduced pay. Whenever an officer or employee of the State, including those exempt from the classified service, qualifies for workers' compensation disability benefits, such officer or employee, for a period not to exceed 3 months from the date such compensation begins, shall not be charged sick leave and shall receive from the State the difference, if any, between the total of: (1) The amount of such compensation, (2) any disability benefits received under the Federal Social Security Act, and (3) any other employer supported disability program, and the amount of wages to which the officer or employee is entitled on the date such compensation begins, provided the injury or disease for which such compensation is paid is not the direct result of such officer or employee's misconduct and occurs during a period of employment for which the employee is entitled to receive wages. No more than 1 period of supplemental pay shall be made under this subsection for any work injury, including any recurrence or aggravation of that work injury.

(b) Subsection (a) of this section applies to officers or employees of the State who qualified to receive supplemental compensation under this section subsequent to June 30, 1981. Officers or employees of the State who qualified to receive supplemental compensation under this section prior to July 1, 1981, and remain entitled to receive such supplemental compensation, shall have such supplemental compensation terminated as of September 1, 1985.

(c) Notwithstanding subsection (a) of this section, the 3-month limitation shall not apply to any employee injured while performing a hazardous duty assignment and whose injury or injuries arose out of and in the course of performing hazardous duty; provided, however, such employee shall be entitled to the benefits of this section for not more than 12 months. Hazardous duty assignments shall include, but not be limited to:

(1) Employees otherwise qualified who are employed by the Department of Corrections;

(2) Employees otherwise qualified who are employed by the Delaware Psychiatric Center who are assigned to programs for the criminally insane;

(3) Employees otherwise qualified who are employed by the Division of Youth Rehabilitation;

(4) State law-enforcement officers in the performance of their duties; provided, however, no law-enforcement officer shall be covered under this section while said officer is performing a function or duty that is considered administrative in nature;

(5) State employees serving in response to the imminent danger of hazardous waste material, including but not limited to the SERT Team.

(d) The Director of the Office of Management and Budget shall promulgate such rules and regulations as may be required to administer this act and shall periodically review and recommend other state employees engaged in hazardous duty assignments for inclusion for coverage under this section.

(e) Notwithstanding subsection (a) of this section, any employee who suffers a serious illness or injury in the line of duty that is caused or contributed to by war or act of war (declared or not), who is a member of the United States Military or National Guard shall not be charged sick leave for recovery for medical procedures or operations resulting from said injury or illness for a period of 6 months. To be eligible for this category of leave the employee shall have returned to active state employment status for a period of not less than 30 calendar days and shall have completed any necessary certification established by the Director of Office of Management and Budget. The eligibility for such period of leave shall not be longer than 6 consecutive months and shall be invoked within the first year of return to active employment status. In extraordinary circumstances, approval may be sought from the Director of the Office of Management and Budget to use said consecutive leave on an intermittent basis. All benefits and rights within this subsection shall exhaust within the first year of return to active employment status. The Director of the Office of Management and Budget shall be authorized to establish rules and procedures consistent with this subsection.

29 Del. C. 1953, § 5933; 56 Del. Laws, c. 376, § 6; 60 Del. Laws, c. 247, § 1; 63 Del. Laws, c. 80, § 53; 65 Del. Laws, c. 154, § 1; 65 Del. Laws, c. 498, § 1; 70 Del. Laws, c. 550, § 1; 75 Del. Laws, c. 88, § 20(6); 75 Del. Laws, c. 89, § 30; 76 Del. Laws, c. 370, § 1.;

§ 5934. Working conditions.

The rules shall provide for the development and operation of programs to improve work effectiveness and morale of employees in the state service, including training, safety, health, welfare, counseling, recreation and employee relations.

29 Del. C. 1953, § 5934; 55 Del. Laws, c. 443, § 1; 56 Del. Laws, c. 376, § 6.;

§ 5935. Veterans' preference.

The rules shall provide for preference to be given to veterans of the armed forces of the United States who served during wartime. Such rules shall provide that:

(1) Preference shall be confined to original entrance and shall not be applied to promotion within the classified service or to retention in case of reduction in force;

(2) Preference shall be granted only in the form of credits to be added to earned ratings in examinations, with disabled veterans receiving no more than 10 points and other veterans no more than 5 points;

(3) A definition of a disabled veteran shall be set forth in the rules;

(4) All veterans shall be required to meet job requirements before receiving preference credits;

(5) Employees in the classified service who, while in good standing, leave or have left the state service to engage in military service shall be given credit for seniority purposes for the time served in the armed forces not to exceed 3 years; and

(6) Any preference points for which a veteran would qualify after complying with paragraphs (1), (2) and (3) of this section may be claimed by his or her unremarried widow or widower providing he or she achieves a passing examination grade.

29 Del. C. 1953, § 5935; 55 Del. Laws, c. 443, § 1; 56 Del. Laws, c. 376, § 6; 59 Del. Laws, c. 448, § 1; 60 Del. Laws, c. 318, § 1; 65 Del. Laws, c. 71, § 1; 76 Del. Laws, c. 124, §§ 10, 11.;

§ 5936. Enforcement.

The rules shall provide for such rules and administrative regulations not inconsistent with this chapter as may be proper and necessary for its enforcement.

29 Del. C. 1953, § 5936; 55 Del. Laws, c. 443, § 1; 56 Del. Laws, c. 376, § 6.;

§ 5937. Preference for residents.

Repealed by 76 Del. Laws, c. 124, § 12, effective July 12, 2007.

§ 5938. Collective bargaining.

(a) Except as expressly provided in subsection (c) of this section, nothing contained in this chapter or in the rules shall deny, limit or infringe upon the right of any employee in the classified service or any exclusive bargaining representative under Chapter 13 of Title 19.

(b) Except as expressly provided in subsection (c) of this section, nothing contained in this chapter or in the rules shall deny, limit or infringe upon any collective bargaining agreement or the authority and duty of this State or any agency thereof to engage in collective bargaining with the exclusive bargaining representative under Chapter 13 of Title 19.

(c) The rules adopted or amended by the Board under the following sections shall apply to any employee in the classified service represented by an exclusive bargaining representative or covered by a collective bargaining agreement under Chapter 13 of Title 19, except in the case of collective bargaining agreements reached pursuant to § 1311A of Title 19: §§ 5915 through 5921, 5933, 5935 and 5937 of this title.

(d) The rules adopted or amended by the Board under the following sections shall not apply to any employee in the classified service represented by an exclusive bargaining representative to the extent the subject thereof is covered in whole or in part by a collective bargaining agreement under Chapter 13 of Title 19: §§ 5922 through 5925 of this title, except where transfer is between agencies or where change is made in classification or pay grade, §§ 5926 through 5928 of this title, except where an employee laid off by 1 agency is reemployed by another, §§ 5929 through 5932, 5934 and 5936 of this title.

(e) The Director and the Board shall meet with the exclusive bargaining representative at reasonable times to negotiate in good faith with respect to any rule to be adopted or amended under §§ 5915 through 5921, 5933, 5935 and 5937 of this title and, to the extent the subject thereof is not covered in whole or in part by a collective bargaining agreement under Chapter 13 of Title 19, §§ 5922 through 5932, 5934 and 5936 of this title.

29 Del. C. 1953, § 5938; 56 Del. Laws, c. 376, § 7; 69 Del. Laws, c. 436, § 9; 76 Del. Laws, c. 178, § 5.;

§ 5939. Preference for unemployed.

Repealed by 76 Del. Laws, c. 124, § 13, effective July 12, 2007.

§ 5940. Review dates.

The review date for employees of the classified service shall be December 31 of each fiscal year, except for fiscal year 1990. For fiscal year 1990, the review date for all employees shall be January 1, 1990, and shall not change during the fiscal year. The review date for employees hired during any fiscal year shall be December 31 of the subsequent fiscal year, except for fiscal year 1990. For fiscal year 1990, the review date for employees hired before January 1, 1990, shall be January 1, 1990, and for those hired after January 1, 1990, the review date shall be July 1, 1990.

62 Del. Laws, c. 277, § 11; 67 Del. Laws, c. 47, § 12(k); 70 Del. Laws, c. 118, § 32.;