Subchapter IV. Enforcement and Appeals
TITLE 29
State Government
Public Officers and Employees
CHAPTER 59. MERIT SYSTEM OF PERSONNEL ADMINISTRATION
Subchapter IV. Enforcement and Appeals
§ 5941. Duties of state officers and employees.
All officers and employees of the State shall comply with and aid in all proper ways in carrying out this chapter and the rules, regulations and orders thereunder. All officers and employees shall furnish any records or information which the Director or the Board may request for any purpose of this chapter. The Director, with the approval of the Board, may institute and maintain any action or proceeding at law or in equity that the Director considers necessary or appropriate to secure compliance with this chapter and the rules, regulations and orders thereunder.
29 Del. C. 1953, § 5941; 55 Del. Laws, c. 443, § 1; 69 Del. Laws, c. 436, § 9; 70 Del. Laws, c. 186, § 1.;
§ 5941A. Requirement of registration with Selective Service System.
The rules shall provide that all males born after January 1, 1960, must have registered with the Selective Service System in order to be eligible for state employment.
65 Del. Laws, c. 505, § 1.;
§ 5942. Certification of payrolls; audits.
(a) No state disbursing or auditing officer shall make or approve or take any part in making or approving any payment for personal service to any person holding a position in the classified service unless the payroll voucher or account bears the certification or electronic approval of the appropriate state officer that the persons named therein are being paid in accordance with this chapter and the rules, regulations and orders thereunder.
(b) The Director of the Office of Management and Budget shall conduct such post audits of state payrolls and such other investigations as deemed necessary to ensure that this chapter and the rules, regulations and orders thereunder are being observed. Any violations shall be called immediately to the attention of the appropriate agency head and to the Auditor of Accounts and Secretary of Finance. Thereafter, no payment shall be made to any employee whose salary rate has been questioned until the rate has been adjusted to the satisfaction of the Director of the Office of Management and Budget.
29 Del. C. 1953, § 5942; 55 Del. Laws, c. 443, § 1; 70 Del. Laws, c. 509, §§ 2, 3; 75 Del. Laws, c. 88, §§ 20(6), 36.;
§ 5943. Enforcement of chapter by legal action.
(a) The exclusive remedy available to a classified employee for the redress of an alleged wrong, arising under a misapplication of any provision of this chapter, the merit rules or the Director's regulations adopted thereunder, is to file a grievance in accordance with the procedure stated in the merit rules. Standing of a classified employee to maintain a grievance shall be limited to an alleged wrong that affects his or her status in his or her present position.
(b) Any Delaware resident or state employee may maintain a suit to restrain a disbursing officer from making any payment in contravention of any provision of this chapter, the merit rules or the Director's regulations adopted thereunder. Jurisdiction for such action shall lie in the Chancery Court.
(c) The State may maintain an action for the reimbursement of wages, benefits or both, paid contrary to this chapter, the merit rules or the Director's regulations adopted thereunder, against the recipient employee. All moneys recovered in such action shall be paid to the State Treasury and credited to the account from which original payments had been drawn. The appointing authority may take disciplinary action against any employee in the classified service who negligently prepared the document authorizing the overpayment of wages, benefits or both, contrary to any provision of this chapter, the merit rules or the Director's regulations adopted thereunder. Disciplinary action shall not be taken against any employee in the classified service who merely approved such document authorizing overpayment unless the person so approving participated in the preparation of such document.
(d) Any person appointed or employed in contravention of any provision of this chapter, the merit rules or the Director's regulations adopted thereunder, who performs services for which such person is not paid, may maintain an action against any officer or officers who purported to so appoint or employ such person to recover the agreed wages, benefits or both, or the reasonable value thereof, if no pay was agreed upon, plus interest, court costs and reasonable attorney's fees.
(e) It shall be the obligation of the appointing authority to determine that documents necessary for placing a person on the state payroll are properly executed prior to the date that the employee begins, transfers to, promotes to, demotes to or in any other way changes the employee's position in state employment. Documentation, depending on the position to be filled, consists of some or all of the following:
(1) Job application;
(2) Certification list;
(3) Copy of the job posting if a permanent position;
(4) Written notification signed by the appointing authority stating:
a. Position being filled;
b. Pay grade of the employee;
c. Employee's gross pay each pay period;
d. Source of funding of the position;
e. Two copies of the employee's social security card;
(5) Hiring approval during a hiring freeze.
In the event that an employee otherwise qualified for classified service is properly appointed but improperly placed on the state payroll, the State shall be liable for the wages, benefits or both of the employee during the first 10 working days of the employee's employment. In the event that the employee is not properly placed on the state payroll by the end of the employee's 10th working day, the appointing authority shall lay off the employee until the employee is properly so placed, or be liable to the employee for wages, benefits or both, in accordance with subsection (d) of this section. The review date for persons not properly placed on the state payroll shall be the date the person first reported for duty in that position.
(f) For the purpose of subsections (d) and (e) of this section, the Director of the Office of Management and Budget or the Director's designee shall determine whether an employee is properly appointed. The Director or the Director's designee shall certify the appointment by approving the state personnel transaction supplied by the agency. The approval of the Director or the Director's designee shall relieve any officer or appointing authority from liability because of an improper appointment, except where the improper appointment was effected through the fraud of any officer or appointing authority. The approval of the Director or the Director's designee shall similarly relieve any officer or appointing authority from liability for the payment of wages, benefits or both arising under subsection (d) or subsection (e) of this section, except where the officer or appointing authority is grossly negligent in disregarding any provision of this chapter, the merit rules or the Director's regulations adopted thereunder. Such approval by the Director or the Director's designee shall not prevent the appointing authority from taking disciplinary action against any employee in the classified service who negligently prepared the document authorizing the overpayment of wages, benefits or both.
(g) If the appointing authority wrongfully withholds certification of the payroll account of any employee, such employee may maintain a proceeding to compel the appointing authority to certify such payroll account.
(h) No action for the reimbursement of wages, benefits or both, improperly paid to a state employee shall be brought after the expiration of 3 years from the date the wages, benefits or both were improperly paid.
(i) Section 8111 of Title 10 shall be applicable to employment between a person and the State.
(j) Following the passage of this section, all state agencies shall conduct audits of the payroll records of each of its employees. In the event that the audit indicates that a discrepancy exists between the amount actually paid and the amount that should have been paid, the agency shall notify the employee, the appointing authority, the Secretary of Finance and the Auditor of Accounts, with sufficient documentation to point out the source and amount of the discrepancy, within 10 calendar days of the date of the completion of the audit. In the event that the audit indicates an overpayment, the appointing authority shall provide the Attorney General with the same notice provided the employee. The Attorney General may proceed in accordance with subsection (c) of this section. The appointing authority shall, within 1 pay period, correct the discrepancy on proper personnel payroll forms.
(k) For the purpose of this section "appointing authority" shall be as defined in the merit rules adopted pursuant to § 5914 of this title.
(l) Notwithstanding any section of the Code, or any uncodified section of the Delaware law to the contrary, no action for reimbursement as hereinbefore described shall be brought by the State for the overpayment of wages or benefits made, up to and including the last day of the pay period following the date this section becomes effective.
(m) To permit all state agencies to comply and conduct the audit required by subsection (j) of this section, this section shall become effective 6 months from July 12, 1978.
29 Del. C. 1953, § 5943; 55 Del. Laws, c. 443, § 1; 56 Del. Laws, c. 376, § 8; 61 Del. Laws, c. 523, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 509, §§ 4-6; 75 Del. Laws, c. 88, § 20(6); 75 Del. Laws, c. 350, § 83.;
§ 5944. Oaths, testimony and the production of records.
The Board, each Board member and the Director shall have power to administer oaths, subpoena witnesses and compel the production of books and papers relevant to any investigation or hearing authorized by this chapter. Any person who shall fail to appear in response to a subpoena or to answer any question or produce any books or papers relevant to any such investigation or hearing may be compelled to do so by order of the Superior Court.
29 Del. C. 1953, § 5944; 55 Del. Laws, c. 443, § 1; 69 Del. Laws, c. 436, § 9.;
§ 5945. Refusal of employee to testify.
If any employee in the state service shall willfully refuse or fail to appear before any court or judge, any legislative committee or any officer, board or body authorized to conduct any hearing or inquiry, or, having appeared, shall refuse to testify or answer any question relating to the affairs or government of the State or the conduct of any state officer or employee on the ground that the employee's testimony or answers would tend to incriminate the employee or shall refuse to waive immunity from prosecution on account of any matter about which the employee may be asked to testify at any such hearing or inquiry, the employee shall forfeit the employee's office or position and shall not be eligible thereafter for appointment to any position in the state service.
29 Del. C. 1953, § 5945; 55 Del. Laws, c. 443, § 1; 70 Del. Laws, c. 186, § 1.;
§ 5946. Prohibited acts.
(a) No person shall make any false statement, certificate, mark, rating or report with regard to any hearing, test, certification or appointment made under any provision of this chapter or in any manner commit or attempt to commit any fraud preventing the impartial execution of this chapter and the rules thereunder.
(b) No person shall, directly or indirectly, give, render, pay, offer, solicit or accept any money, service or other valuable consideration for or on account of any appointment, proposed appointment, promotion or proposed promotion to, or any advantage in, a position in the classified service.
(c) No employee of the Board, examiner or other person shall defeat, deceive or obstruct any person in the right to examination, eligibility, certification or appointment under this chapter or furnish to any person any special or secret information for the purpose of affecting the rights or prospects of any person with respect to employment in the classified service.
29 Del. C. 1953, § 5946; 55 Del. Laws, c. 443, § 1; 69 Del. Laws, c. 436, § 9; 70 Del. Laws, c. 186, § 1.;
§ 5947. Penalties; jurisdiction.
(a) Any person who willfully violates this chapter or any of the rules shall be guilty of a misdemeanor and shall be punished therefor as the Court may direct.
(b) Any person who is convicted of a misdemeanor under subsection (a) of this section shall, for a period of 5 years, be ineligible for appointment to, or employment in, a position in the state service, and if the person is an officer or employee of the State shall forfeit the person's office or position.
(c) The Superior Court shall have exclusive jurisdiction of violations of this chapter.
29 Del. C. 1953, § 5947; 55 Del. Laws, c. 443, § 1; 70 Del. Laws, c. 186, § 1.;
§ 5948. Records of Board.
The Board's records, except such records as the rules may properly require to be held confidential for reasons of public policy, shall be public records and shall be open to public inspection subject to reasonable regulations as to the time and manner of inspection as may be prescribed by the Director. Reports concerning character, personal history and health of employees or applicants for employment shall be held confidential except when a majority of the Board shall find it to be in the public interest that the same shall be open to public inspection.
29 Del. C. 1953, § 5948; 55 Del. Laws, c. 443, § 1; 69 Del. Laws, c. 436, § 9.;
§ 5949. Appeals.
(a) An employee in the classified service who has completed a probationary period of service may not, except for cause, be dismissed or demoted or suspended for more than 30 days in any 1 year. Within 30 days after any such dismissal, demotion or suspension, an employee may appeal to the Board for review thereof. Upon such review, both the appealing employee and the appointing authority whose action is reviewed shall have the right to be heard publicly and to present evidentiary facts. At the hearing, technical rules of evidence shall not apply. The rules shall require that the Board take final action on an appeal 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) If the Board upholds the decision of the appointing authority, the employee shall have a right of appeal to the Superior Court on the question of whether the appointing authority acted in accordance with law. The burden of proof of any such appeal to the Board or Superior Court is on the employee. If the Board finds against the appointing authority, the appointing authority shall have a right of appeal to the Superior Court on the question of whether the appointing authority acted in accordance with law. The burden of proof of any such appeal to the Superior Court is on the appointing authority. All appeals to the Superior Court shall be by the filing of a notice of appeal with the Court within 30 days of the employee being notified of the final action of the Board.
(c) Whenever subsection (a) or (b) of this section conflicts with any collective bargaining agreement, or whenever any collective bargaining agreement is exclusive with respect to matters which are the subject thereof, the collective bargaining agreement shall apply and shall be followed.
(d) If the Board finds that the action complained of was taken by the appointing authority for any political, religious or racial reason, or is not supported by the facts as having been for cause, the employee shall be reinstated to the former position or a position of like status and pay without loss of pay for the period of suspension.
29 Del. C. 1953, § 5949; 55 Del. Laws, c. 443, § 1; 56 Del. Laws, c. 376, § 9; 69 Del. Laws, c. 436, §§ 8, 9; 70 Del. Laws, c. 186, § 1.;