TITLE 29

State Government

Public Officers and Employees

CHAPTER 57. SOCIAL SECURITY


As used in this chapter:

(1) "Employee" includes an officer of a state or political subdivision thereof.

(2) "Employment" means any service performed by an employee in the employ of the State, local government, housing authority or any other political subdivision thereof, for such employer, except (i) service which in the absence of an agreement entered into under this chapter would constitute "employment" as defined in the Social Security Act [42 U.S.C. § 301 et seq.], or (ii) service which under the Social Security Act may not be included in an agreement between the State and the Federal Security Administrator entered into under this chapter. Service which under the Social Security Act [42 U.S.C. § 301 et seq.] may be included in an agreement only upon certification by the Governor in accordance with § 218(d)(3) of that Act [42 U.S.C. § 418(d)(3)] shall be included in the term "employment" if and when the Governor issues, with respect to such service, a certificate to the Secretary of Health, Education and Welfare pursuant to subsection (b) of § 5710 of this title.

(3) "Federal Insurance Contributions Act" means subchapter A of Chapter 9 of the Federal Internal Revenue Code of 1939 and subchapters A and B of Chapter 21 of the Federal Internal Revenue Code of 1954 [26 U.S.C. § 3101 et seq.], as such Codes have been and may from time to time be amended; and the term "employee tax" means the tax imposed by § 1400 of such Code of 1939 and § 3101 of such Code of 1954 [26 U.S.C. § 3101].

(4) "Federal Security Administrator" includes any individual to whom the Federal Security Administrator has delegated any of the Administrator's functions under the Social Security Act [42 U.S.C. § 405(l)] with respect to coverage under such Act of employees of states and their political subdivisions.

(5) "Political subdivisions" includes an instrumentality of a state and 1 or more of its political subdivisions, but only if such instrumentality is a juristic entity which is legally separate and distinct from the state or subdivision and only if its employees are not by virtue of their relation to such juristic entity employees of the state or subdivision; the housing authority continued under Chapter 43 of Title 31 shall be construed to be a political subdivision.

(6) "Secretary of Health, Education and Welfare" includes any individual to whom the Secretary of Health, Education and Welfare has delegated any of the Secretary's functions under the Social Security Act [42 U.S.C. § 405(l)] with respect to coverage under such Act of employees of states and their political subdivisions and, with respect to any action taken prior to April 11, 1953, includes the Federal Security Administrator and any individual to whom such Administrator had delegated any such function.

(7) "Social Security Act" means the act of Congress approved August 14, 1935, Chapter 531, 49 Stat. 620 [42 U.S.C. § 301 et seq.], officially cited as the "Social Security Act," including regulations and requirements issued pursuant thereto, as such Act has been and may from time to time be amended.

(8) "State Agency" means the State Treasurer.

(9) "Wages" means all remuneration for employment as defined in this section, including the cash value of all remuneration paid in any medium other than cash, except that such term shall not include that part of such remuneration which, even if it were for "employment" within the meaning of the Federal Insurance Contributions Act, would not constitute "wages" within the meaning of such Act.

48 Del. Laws, c. 344, § 2; 29 Del. C. 1953, § 5701; 50 Del. Laws, c. 445, §§ 2-4; 57 Del. Laws, c. 741, § 37A; 61 Del. Laws, c. 468, § 2; 70 Del. Laws, c. 186, § 1.;

(a) In order to extend to employees of the State and its political subdivisions and to the dependents and survivors of such employees the basic protection accorded to others by the old-age and survivors insurance system embodied in the Social Security Act, it is declared to be the policy of the General Assembly, subject to the limitations of this chapter, that such steps be taken as to provide such protection to employees of the State and its political subdivisions on as broad a basis as is permitted under the Social Security Act.

(b) It is also the policy of the General Assembly that the protection afforded employees in positions covered by a retirement system on the date an agreement under this chapter is made applicable to service performed in such positions or those receiving periodic benefits under such retirement system at such time will not be impaired as a result of making the agreement so applicable or as a result of legislative enactment in anticipation thereof.

48 Del. Laws, c. 344, § 1; 29 Del. C. 1953, § 5702; 50 Del. Laws, c. 445, § 1.;

The State Agency, with the approval of the Governor, may enter on behalf of the State into an agreement with the Federal Security Administrator, consistent with the terms and provisions of this chapter, for the purpose of extending the benefits of the federal old-age and survivors insurance system to employees of the State or any political subdivision thereof with respect to services specified in such agreement which constitute "employment" as defined in § 5701 of this title. Such agreement may contain such provisions relating to coverage, benefits, contributions, effective date, modification and termination of the agreement, administration and other appropriate provisions as the State Agency and Secretary of Health, Education and Welfare shall agree upon, but, except as may be otherwise required by or under the Social Security Act as to the services to be covered, such agreement shall provide in effect that:

(1) Benefits will be provided for employees whose services are covered by the agreement and their dependents and survivors on the same basis as though such services constituted employment within the meaning of Title II of the Social Security Act;

(2) The State will pay to the Secretary of the Treasury, at such time or times as may be prescribed under the Social Security Act, contributions with respect to wages, as defined in § 5701 of this title, equal to the sum of the taxes which would be imposed by the Federal Insurance Contributions Act if the services covered by the agreement constituted employment within the meaning of such Act;

(3) Such agreement shall be effective with respect to services in employment covered by the agreement performed after a date specified therein but in no event may it be effective with respect to any such services performed prior to the first day of the calendar year in which such agreement is entered into or in which the modification of the agreement making it applicable to such services is entered into, except that with respect to an agreement or modification thereof entered into prior to January 1, 1954, the agreement or modification thereof may be effective with respect to such services performed on or after January 1, 1951, except that a modification entered into after December 31, 1954, and prior to January 1, 1958, may be effective with respect to services performed after December 31, 1954, or after a later date specified in such modification;

(4) All services which constitute employment and are performed in the employ of the State by employees of the State shall be covered by the agreement; provided, however, that services which may be excluded under the Social Security Act may be excluded by the agreement and provided further that the agreement may be drawn to exclude all employees of the State without prejudice to the right to cover employees of the State in a subsequent modification of the agreement;

(5) All services which (i) constitute employment as defined in § 5701 of this title, (ii) are performed in the employ of a political subdivision of the State and (iii) are covered by a plan which is in conformity with the terms of the agreement and has been approved by the State Agency under § 5706 of this title shall be covered by the agreement; provided, however, that services which may be excluded under the Social Security Act may be excluded by the agreement;

(6) As modified, the agreement shall include all services described in either subdivision (4) or (5) of this section and performed by individuals to whom § 218(c)(3)(C) of the Social Security Act [42 U.S.C. § 418] is applicable and shall provide that the service of any such individual shall continue to be covered by the agreement in case the individual thereafter becomes eligible to be a member of a retirement system; and

(7) As modified, the agreement shall include all services described in either subdivision (4) or (5) of this section and performed by individuals in positions covered by a retirement system with respect to which the Governor has issued a certificate to the Secretary of Health, Education and Welfare pursuant to § 5710(b) of this title.

48 Del. Laws, c. 344, § 3; 29 Del. C. 1953, § 5703; 49 Del. Laws, c. 194, §§ 1-3; 50 Del. Laws, c. 445, §§ 5-9; 70 Del. Laws, c. 186, § 1.;

Any instrumentality jointly created by this State and any other state or states may, upon the granting of like authority by such other state or states, (1) enter into an agreement with the Secretary of Health, Education and Welfare whereby the benefits of the federal old-age and survivors insurance system shall be extended to employees of such instrumentality, (2) require its employees to pay, and for that purpose to deduct from their wages, contributions equal to the amounts which they would be required to pay under subsection (a) of § 5705 of this title if they were covered by an agreement made pursuant to § 5703 of this title and (3) make payments to the Secretary of the Treasury in accordance with such agreement, including payments from its own funds, and otherwise to comply with such agreements. Such agreement shall, to the extent practicable, be consistent with the terms and provisions of § 5703 of this title and other provisions of this chapter.

48 Del. Laws, c. 344, § 3; 29 Del. C. 1953, § 5704; 50 Del. Laws, c. 445, § 5.;

(a) Every employee of the State whose services are covered by an agreement entered into under § 5703 of this title shall be required to pay for the period of such coverage into the Contribution Fund established by § 5707 of this title contributions with respect to wages equal to the amount of the employee tax which would be imposed by the Federal Insurance Contributions Act if such services constituted employment within the meaning of such Act. Such liability shall arise in consideration of the employee's retention in the service of the State or the employee's entry upon such service after June 8, 1951.

(b) The contribution imposed by this section shall be collected by deducting the amount of the contribution from wages as and when paid, but failure to make such deduction shall not relieve the employee from liability for such contribution.

(c) If more or less than the correct amount of the contribution imposed by this section is paid or deducted with respect to any remuneration, proper adjustments or refund, if adjustment is impracticable, shall be made, without interest, in such manner and at such times as the State Agency shall prescribe.

48 Del. Laws, c. 344, § 4; 29 Del. C. 1953, § 5705; 50 Del. Laws, c. 445, § 10; 70 Del. Laws, c. 186, § 1.;

(a) Each political subdivision of the State may submit for approval by the State Agency a plan for extending the benefits of Title II of the Social Security Act, in conformity with applicable provisions of such Act, to employees of such political subdivisions. Each such plan and any amendment thereof shall be approved by the State Agency if it finds that such plan, or such plan as amended, is in conformity with such requirements as are provided in regulations of the State Agency, except that no such plan shall be approved unless:

(1) It is in conformity with the requirements of the Social Security Act and with the agreement entered into under § 5703 of this title;

(2) It provides that all services which constitute employment and are performed in the employ of the political subdivision by employees thereof shall be covered by the plan except that it may exclude services performed by individuals to whom § 218(c)(3)(C) of the Social Security Act [42 U.S.C. § 418] is applicable; provided, however, that services which may be excluded under the Social Security Act may be excluded by the agreement;

(3) It specifies the source or sources from which the funds necessary to make the payments required by paragraph (1) of subsection (c) of this section and by subsection (d) of this section are expected to be derived and contains reasonable assurance that such sources will be adequate for such purpose;

(4) It provides for such methods of administration of the plan by the political subdivision as are found by the State Agency to be necessary for the proper and efficient administration of the plan;

(5) It provides that the political subdivision will make such reports, in such form and containing such information as the State Agency may from time to time require, and comply with such provisions as the State Agency or the Secretary of Health, Education and Welfare may from time to time find necessary to assure the correctness and verification of such reports; and

(6) It authorizes the State Agency to terminate the plan in its entirety, in the discretion of the State Agency, if it finds that there has been a failure to comply substantially with any provision contained in such plan, such termination to take effect at the expiration of such notice and on such conditions as may be provided by regulations of the State Agency and may be consistent with the Social Security Act.

(b) The State Agency shall not finally refuse to approve a plan submitted by a political subdivision under subsection (a) of this section and shall not terminate an approved plan without reasonable notice and opportunity for hearing to the political subdivision affected thereby.

(c)(1) Each political subdivision as to which a plan has been approved under this section shall pay into the Contribution Fund with respect to wages, at such time or times as the State Agency may by regulation prescribe, contributions in the amounts and at the rates specified in the applicable agreement entered into by the State Agency under § 5703 of this title.

(2) Each political subdivision required to make payments under paragraph (1) of this subsection may, in consideration of the employee's retention in or entry upon employment after June 8, 1951, impose upon each of its employees, as to services which are covered by an approved plan, a contribution with respect to wages not exceeding the amount of the employee tax which would be imposed by the Federal Insurance Contributions Act if such services constituted employment within the meaning of such Act and may deduct the amount of such contribution from wages as and when paid. Contributions so collected shall be paid into the Contribution Fund in partial discharge of the liability of such political subdivision or instrumentality under paragraph (1) of this subsection. Failure to deduct such contribution shall not relieve the employee or employer of liability therefor.

(d) Delinquent payments due under paragraph (1) of subsection (c) of this section may, with interest at the rate currently then being charged by the Social Security Administration but not less than $10 per each delinquency, be recovered by action in a court of competent jurisdiction against the political subdivision liable therefor or may, at the request of the State Agency, be deducted from any other moneys payable to such subdivision by any department or agency of the State.

48 Del. Laws, c. 344, § 5; 29 Del. C. 1953, § 5706; 49 Del. Laws, c. 194, §§ 4, 5; 50 Del. Laws, c. 445, §§ 5, 11, 12; 63 Del. Laws, c. 156, § 1; 70 Del. Laws, c. 186, § 1.;

(a) There is established a special fund to be known as the Contribution Fund. Such Fund shall consist of and there shall be deposited in such Fund:

(1) All contributions, interest and penalties collected under §§ 5705 and 5706 of this title;

(2) All moneys appropriated thereto under this chapter;

(3) Any property or securities and earnings thereof acquired through the use of the moneys belonging to the Fund;

(4) Interest earned upon any moneys in the Fund; and

(5) All sums recovered upon the bond of the custodian or otherwise for losses sustained by the Fund and all other moneys received for the Fund from any other source.

All moneys in the Fund shall be mingled and undivided. Subject to this chapter, the State Agency is vested with full power, authority and jurisdiction over the Fund, including all moneys and property or securities belonging thereto, and may perform any and all acts whether or not specifically designated which are necessary to the administration thereof and are consistent with this chapter.

(b) The Contribution Fund shall be established and held separate and apart from any other funds or moneys of the State and shall be used and administered exclusively for the purpose of this chapter. Withdrawals from such Fund shall be made solely for (1) payment of amounts required to be paid to the Secretary of the Treasury pursuant to an agreement entered into under § 5703 of this title, (2) payment of refunds provided for in subsection (c) of § 5705 of this title and (3) refunds of overpayments, not otherwise adjustable, made by a political subdivision or instrumentality.

(c) From the Contribution Fund the custodian of the Fund shall pay to the Secretary of the Treasury such amounts and at such time or times as may be directed by the State Agency in accordance with any agreement entered into under § 5703 of this title and the Social Security Act.

(d) The State Treasurer shall be ex officio treasurer and custodian of the Contribution Fund and shall administer such Fund in accordance with this chapter and the directions of the State Agency and shall pay all warrants drawn upon it in accordance with this section and with such regulations as the State Agency may prescribe pursuant thereto.

(e)(1) There are hereby authorized to be appropriated annually to the Contribution Fund, in addition to the contributions collected and paid into the Contribution Fund under §§ 5705 and 5706 of this title, to be available for the purposes of subsections (b) and (c) of this section until expended, such additional sums as are found to be necessary in order to make the payments to the Secretary of the Treasury which the State is obligated to make pursuant to an agreement entered into under § 5703 of this title.

(2) The State Agency shall submit to each regular session of the General Assembly, at least 90 days in advance of the beginning of such session, an estimate of the amounts authorized to be appropriated to the Contribution Fund by paragraph (1) of this subsection for the next appropriation period.

48 Del. Laws, c. 344, § 6; 29 Del. C. 1953, § 5707; 57 Del. Laws, c. 741, § 37B; 61 Del. Laws, c. 468, § 3.;

The State Agency shall make and publish such rules and regulations, not inconsistent with this chapter, as it finds necessary or appropriate to the efficient administration of the functions with which it is charged under this chapter.

48 Del. Laws, c. 344, § 8; 29 Del. C. 1953, § 5708.;

The State Agency shall make studies concerning the problem of old-age and survivors' insurance protection for employees of the state and local governments and their instrumentalities and concerning the operation of agreements made and plans approved under this chapter. It shall also submit a report to the General Assembly at the beginning of each regular session, covering the administration and operation of this chapter during the preceding calendar year, including such recommendations for amendments to this chapter as it considers proper.

48 Del. Laws, c. 344, § 9; 29 Del. C. 1953, § 5709.;

(a) With respect to employees of the State, the Governor is empowered to authorize a referendum, the cost of such referendum to be borne by the State, and, with respect to the employees of any political subdivision, the Governor shall authorize a referendum upon request of the governing body of such subdivision, the cost of such referendum to be borne by the political subdivision; and in either case the referendum shall be conducted, and the Governor shall designate an agency or individual to supervise its conduct, in accordance with the requirements of § 218(d)(3) of the Social Security Act [42 U.S.C. § 418(d)(3)], on the question of whether service in positions covered by a retirement system established by the State or by a political subdivision thereof should be excluded from or included under an agreement under this chapter. The notice of referendum required by § 218(d)(3)(C) of the Social Security Act [42 U.S.C. § 418(d)(3)(C)] to be given to employees shall contain or shall be accompanied by a statement, in such form and such detail as the agency or individual designated to supervise the referendum shall deem necessary and sufficient, to inform the employees of the rights which will accrue to them and their dependents and survivors and the liabilities to which they will be subject if their services are included under an agreement under this chapter.

(b) Upon receiving evidence satisfactory to the Governor that with respect to any such referendum the conditions specified in § 218(d)(3) of the Social Security Act have been met, the Governor shall so certify to the Secretary of Health, Education and Welfare.

29 Del. C. 1953, § 5710; 50 Del. Laws, c. 445, § 13; 70 Del. Laws, c. 186, § 1.;