Subchapter I. General Provisions
TITLE 29
State Government
Departments of Government
CHAPTER 89. DEPARTMENT OF CORRECTION
Subchapter I. General Provisions
§ 8901. Established.
The Department of Correction is established.
60 Del. Laws, c. 251, § 14.;
§ 8902. Appointment, qualifications, etc., of Commissioner; bureau chiefs; Acting Commissioner.
(a) The administrator and head of the Department shall be the Commissioner of the Department of Correction, who shall be a person qualified by training and experience to perform the duties of the office. The Commissioner shall be appointed by the Governor, with the advice and consent of the Senate, and shall serve at the pleasure of the Governor. The Commissioner shall be paid an annual salary not in excess of $30,000. The Commissioner of the Department of Correction shall become a bona fide resident of the State within 6 months after his or her appointment; provided, however, that upon good cause shown, the Governor may grant an additional extension of 6 months. After becoming a resident of the State, the Secretary shall continuously be a resident of the State as long as he or she retains the office. Failure to obtain or retain such residency shall serve to terminate said office.
(b) In the event the position of Commissioner is vacant, the Governor, by appointment, shall have the power to fill the position or positions of bureau chief as are vacant. Chiefs so appointed shall serve at the pleasure of the Governor, and, upon the position of Commissioner being filled, such chiefs may be removed from office by the Commissioner with the written approval of the Governor.
(c) In the event of death, resignation, temporary incapacity or removal of the Commissioner and prior to the appointment of a successor, the Governor may appoint the chief of any bureau of the Department to serve as Acting Commissioner. The Governor may during the Commissioner's absence from the State appoint the chief of any bureau of the Department to serve as Acting Commissioner during such absence. In either case, the Acting Commissioner shall have all the powers and perform all the duties and functions of the Commissioner during such absence or incapacity or until the successor is duly qualified and appointed.
60 Del. Laws, c. 251, § 14; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 140, § 9.;
§ 8903. Powers, duties and functions -- Commissioner.
The Commissioner shall:
(1) Supervise, direct and account for the administration and operation of the Department, its bureaus, subbureaus, offices, functions and employees;
(2) Appoint and fix the salary, with the written approval of the Governor, of the following chiefs and office heads, who may be removed from office by the Commissioner with the written approval of the Governor, and who shall have such powers, duties and functions in the administration and operation of the Department as may be assigned by the Commissioner:
a. A Chief of the Bureau of Adult Correction who shall be known as the Chief of Adult Correction. The Chief shall have a minimum of an earned graduate degree above that of bachelor from an accredited college or university, in 1 of the behavioral sciences, such as corrections, sociology, psychology or social work, with 5 years of experience in the corrections field, including a responsible administrative position, or an equivalent combination of education and experience which provides the necessary knowledge and abilities.
b. [Repealed.]
(3) Appoint such additional personnel as may be necessary for the administration and operation of the Department within such limitations as may be imposed by law;
(4) Establish, consolidate, abolish, transfer or combine the powers, duties and functions of the bureaus, subbureaus and offices within the Department as the Commissioner, with the written approval of the Governor, may deem necessary, providing that all powers, duties and functions required by law shall be provided for and maintained;
(5) Make and enter into any and all contracts, agreements or stipulations, and retain, employ and contract for the services of private and public consultants, research and technical personnel and to procure by contract, consulting, research, technical and other services and facilities, whenever the same shall be deemed by the Commission necessary or desirable, in the performance of the functions of the Department, and whenever funds shall be available for such purpose. All necessary legal services shall be provided pursuant to Chapter 25 of this title;
(6) Delegate any of the Commissioner's powers, duties or functions to a chief of a bureau, except the power to remove employees of the Department or to fix their compensation;
(7) Establish and promulgate such rules and regulations governing the administration and operation of the Department as may be deemed necessary by the Commissioner and which are not inconsistent with the laws of this State;
(8) Maintain such facilities throughout the State as may be required for the effective and efficient operation of the Department;
(9) Adopt an official seal or seals for the Department;
(10) Adopt a plan for use of personnel within the correctional system, which plan will prohibit the placement or assignment of guards of 1 sex within housing units for inmates of the opposite sex unless the Commissioner shall determine that emergency conditions require such placement;
(11) Adopt a plan to identify and classify very low risk inmates convicted of misdemeanors and sentenced to serve no more than 24 months of incarceration and to provide an ongoing list of such inmates eligible for release to alternative programs of punishment which do not include incarceration. Such plan shall include a provision that all inmates sentenced to serve no more than 24 months of incarceration shall be so identified and classified within 90 days of their commitment to an institution supervised by the Department;
(12) Devise and adopt a plan to provide weapons training to all probation and parole officers. Such plan shall include an option for each such officer to carry a firearm, after successful completion of a course in weapons, during work in the field. Said course of training shall meet or exceed the standards established by the Council on Police Training. Such plan shall be in operation no later than 60 days after July 17, 1992; and
(13) Upon an order of the court directing the Department to debit monies in an inmate account in accordance with Chapter 88 of Title 10, the Department shall, to the extent adequate funds are available, transfer such monies to the court. To the extent an inmate's account does not have adequate funds to comply with the court's order, the Department shall debit the inmate's account for future payment to the court. The Department shall retain records of an inmate's account upon the release of the prisoner from the custody of the Department if such account has a negative balance pursuant to a court order under Chapter 88 of Title 10. The outstanding balance of such an account shall be reinstated should that person be committed to the custody of the Department at some future time. Notwithstanding the above, no court order pursuant to Chapter 88 of Title 10, shall have priority over charges or debits pursuant to § 6536(b) or (c) of Title 11.
60 Del. Laws, c. 251, § 14; 61 Del. Laws, c. 15, §§ 1, 2; 62 Del. Laws, c. 283, § 1; 64 Del. Laws, c. 108, § 15; 64 Del. Laws, c. 304, § 1; 68 Del. Laws, c. 414, § 1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 411, § 2.;
§ 8904. Powers, duties and functions -- Department.
The Department of Correction shall have the powers, duties and functions as follows:
(1) To perform and shall be responsible for the performance of all the powers, duties and functions heretofore vested in:
The Division of Corrections, pursuant to Chapter 79 of this title, which was vested with the powers, duties and functions which were previously vested in:
a. The Department of Correction and the Board of Correction pursuant to Chapters 43 and 65 of Title 11;
b. [Repealed.]
(2) The Department of Correction shall furnish the Board of Parole adequate office facilities and supplies to properly perform its duties pursuant to Chapter 43 of Title 11.
60 Del. Laws, c. 251, § 14; 64 Del. Laws, c. 108, § 15.;
§ 8905. Council on Correction.
(a) There is established the Council on Correction.
(b) The Council on Correction shall serve in an advisory capacity to the Commissioner of Correction and shall consider matters relating to the development and progress of the correctional system of this State. The Council shall consider such other matters as may be referred to it by the Governor, the Commissioner and the Chief of the Bureau of Adult Correction. The Council may study, research, plan and advise the several chiefs, the Commissioner and the Governor on matters it deems appropriate to enable the Department to function in the best manner.
(c) The Council on Correction shall be composed of 11 members. Ten members shall be appointed for 3-year terms by the Governor, and additionally the Governor shall appoint a Chairperson to serve at the Governor's pleasure. The Council shall consider matters relating to the development and progress of the adult correctional system of this State, including correctional facilities and services provided to adult offenders.
(d) At least 5, but no more than 6, members of the Council shall be affiliated with 1 of the major political parties and at least 4, but no more than 5, of the newly appointed members shall be affiliated with the other major political party; provided, however, there shall be no more than a bare majority representation of 1 major political party over the other major political party. Any person who declines to announce a political affiliation shall also be eligible for appointment as a member of the Council.
(e) Members of the Council shall serve without compensation, except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council. Failure to attend 3 consecutive regular meetings of the Council shall be construed as a request by that member to resign from the Council, and the Governor, upon notice from the Commissioner of the Department that a member has missed such meetings, may thereupon appoint another in the member's stead.
(f) Any replacement appointment to the Council to fill a vacancy prior to the expiration of a term shall be filled only for the remainder of the term.
(g) All meetings of the Council shall be open to the public.
60 Del. Laws, c. 251, § 14; 64 Del. Laws, c. 108, §§ 16, 17; 70 Del. Laws, c. 186, § 1.;
§ 8906. Exemptions from merit system.
The following positions set forth in this section shall specifically be exempt from Chapter 59 of this title, as well as any others allowed by Chapter 59 of this title:
(1) Commissioner of Correction; and
(2) Chiefs as established by this chapter, as well as any hereafter established, by the Commissioner, with the approval of the Governor.
60 Del. Laws, c. 251, § 14.;
§ 8907. Assumption of functions.
The Department of Correction, through appropriate bureaus, agencies and offices, shall have the power to perform and shall be responsible for the performance of all the powers, duties and functions which were the previous responsibilities of the Division of Adult Corrections immediately prior to July 1, 1975, and which are not otherwise specifically transferred to the Department by this chapter.
60 Del. Laws, c. 251, § 14; 64 Del. Laws, c. 108, § 18.;
§ 8908. Appeals.
Any and all rights of appeal now existing by law with respect to any act or acts constituting the exercise of any function or functions transferred to the Department or to any bureau or subbureau thereof shall continue to exist with respect to such act or acts as hereafter performed by the Department or by the bureau, subbureau or office to which such function is transferred, and each such appeal shall be perfected in the manner heretofore provided by law.
60 Del. Laws, c. 251, § 14.;
§ 8909. Definitions and references in other laws.
(a) All definitions and references to any commission, board, department, authority or agency which appear in any other act or law shall, to the extent that the same are consistent with this chapter and in connection with a function transferred to the Department, be construed as referring and relating to the Department of Correction as created and established by this chapter.
(b) All definitions and references to any director, commissioner, executive secretary, commission, board or council member or other similar person which appear in any other act or law shall, to the extent that same are consistent with this chapter, and in connection with a function transferred to the Department, be construed as referring or relating to such person or persons and their powers, duties and functions as established and created by this chapter.
60 Del. Laws, c. 251, § 14.;
§ 8910. Annual report.
The Commissioner of the Department of Correction shall make an annual report to the Governor and to the General Assembly which shall describe the Department's operations. The Commissioner shall also render such other reports as the Governor or the General Assembly may from time to time request, or as may be required by law.
60 Del. Laws, c. 251, § 14.;
§ 8911. Budgeting and financing.
The Commissioner, in cooperation with the bureau chiefs, shall prepare a proposed budget for the operation of the Department to be submitted for a consideration of the Governor and the General Assembly. The Department shall be operated within the limitation of the annual appropriation, and any other funds appropriated by the General Assembly. Special funds may be used in accordance with the programs, grants and appropriations.
60 Del. Laws, c. 251, § 14.;
§ 8912. Misnomer in gifts, grants, etc.
Any misnomer shall not defeat or annul any gift, grant, devise or bequest to the Department if it sufficiently appears by the will, conveyance or other writing that the party making the same intended to pass and convey to the Department or to any commission, board, department, authority, council or other agency of the Department to which, by this chapter, the powers, duties and functions have been transferred to the Department, the estate or interest therein expressed or described.
60 Del. Laws, c. 251, § 14.;
§ 8913. Financial liability of committed person.
(a) In the event any person, juvenile or adult is committed to a prison or correctional institution, and in the event a court of this State has not ordered payment of the full cost of care, the Department may require such payments from such juvenile or adult while on work release or similar programs, as it may deem appropriate, provided that the total payment shall not exceed the actual cost of care while on the work release program.
(b) The Commissioner of the Department shall have the power to promulgate any rules and regulations not contrary to the laws of the State which the Commissioner deems necessary to carry out this section and such rules and regulations shall have the full force and effect of law.
(c) Any court of this State committing a person to the jurisdiction of the Department may, in its discretion, order said person, and such other persons liable for the payment of costs under this section over which the court has jurisdiction, to pay for the cost of care, treatment or both in such amounts as may be fixed by the Department under this chapter.
(d) The "cost of care, treatment or both" per diem for a facility shall be deemed to mean the total disbursements made by or on behalf of such facility during a fiscal year, divided by the number of inmate or patient-days during such fiscal year. Such cost shall be computed based on the experience of the previous fiscal year and the revised rate shall be charged beginning on the first day of the fourth month following the end of said fiscal year. In the event the facility has not been operational during the previous fiscal year, the "cost of care, treatment or both" shall be the amount determined by the Department within the guideline of available appropriations and anticipated inmate or patient-days. In the event a facility provides various services that have substantially different costs, and such different costs may be reasonably identified, the Department may determine the "cost of care, treatment or both" based upon the particular service provided.
(e) The Department, after full investigation of collectibility and/or reasons for nonpayment, shall proceed for the recovery of the moneys owed for such care, treatment or both in an action to be brought in any court of the State in the name of the Department, where such action is deemed justified. The Department of Justice of the State shall represent the Department in such cases and any costs to the State arising from such action shall be paid by the State Treasurer from moneys in the General Fund not otherwise appropriated.
60 Del. Laws, c. 251, § 14; 70 Del. Laws, c. 186, § 1.;
§ 8914. Officers and employees.
Notwithstanding § 5920 of this title or any other section, the application by any person seeking employment in the Department shall be rejected if it indicates, on its face, that the applicant does not meet the minimum qualifications for the position sought. Applications shall also be rejected if the applicant has made false statements or misrepresentations on the application; is habituated to the intemperate use of alcoholic beverages or the use of harmful drugs which makes the applicant unable to perform duties required by the position; has a record of court convictions or infamous or other conduct which renders the applicant unsuitable for employment; or has been separated from any branch of the armed forces under conditions other than honorable.
60 Del. Laws, c. 706, § 1; 70 Del. Laws, c. 186, § 1.;