State Government

Public Officers and Employees


The purpose of this chapter is to create a vehicle through which all employees of the State may, on a voluntary basis, provide for additional retirement income security through a program of deferred compensation. The deferred compensation program provided by this chapter shall be in addition to any retirement or other benefit program provided by law for employees of the State.

60 Del. Laws, c. 146, § 1.;

As used in this chapter:

(1) "Deferred compensation" means income earned as a public officer or employee of the State which, pursuant to a written agreement between the State and the employee, is set aside for retirement purposes.

(2) "Deferred compensation program" means such plan or plans of deferred compensation as may be adopted by the Deferred Compensation Council.

(3) "Employee" means an individual who is employed by the State, including elected or appointed officials, and who receives compensation wholly or in part directly from the State Treasury or from the Treasury through an agency within the State that is wholly or in part supported by the State. Individuals hired on a temporary basis or as consultants shall not qualify as employees.

(4) "Qualified participant" is defined as an employee of the State, including school districts, who has deferred compensation under the provisions of this chapter and satisfies either of the following conditions:

a. Employee must be enrolled in the deferred compensation program for no less than 6 consecutive months immediately preceding receipt of the match;

b. Employee has deferred the maximum allowable by the Internal Revenue Service within the 6 months preceding receipt of the match.

60 Del. Laws, c. 146, § 1; 72 Del. Laws, c. 488, § 1.;

(a) There shall be established a Deferred Compensation Council for public employees of the State which shall consist of 7 members, as follows:

(1) The Secretary of Finance, State Treasurer, Director of the Office of Management and Budget and the State Insurance Commissioner or their designees shall serve ex officio as members.

(2) Two shall be state employees appointed by the Governor.

(3) One shall be a representative of the public-at-large appointed by the Governor.

(4) Those members who do not serve ex officio shall be appointed for terms of 3 years, commencing, in each case, from the date of appointment; provided, however, that in the initial appointments, members shall, as designated by the Governor at the time of appointment, serve 1, 2 and 3 year terms respectively.

(5) In the case of vacancy on the Council for any reason other than expiration of the term of office, the Governor shall fill such a vacancy for the unexpired term.

(b) The Council shall, subject to any applicable contract provisions, undertake to obtain as favorable conditions of tax treatment as possible, both in the existing program and any later amendments thereto or any later programs as to such matters as: terms of distribution, designation of beneficiaries, withdrawal upon disability, financial hardship or termination of public employment and other optional provisions.

(c) The Council shall be responsible for the general administration of this chapter. Such responsibility shall include, but not be limited to:

(1) The adoption of rules and regulations for the administration of this chapter.

(2) Establishment and implementation of deferred compensation plans including the power to contract for any and all services that may be required to implement such plans.

(d) Except for ex officio members, all members of the Council shall be entitled to reimbursement for those travel and other expenses made necessary by their official duties that are approved by the State Treasurer.

(e) The Council shall be jointly chaired by the Secretary of Finance and the State Treasurer.

(f) The Council shall hold regular meetings at least twice each year, which meetings shall be open to the public in accordance with § 10004 of this title.

(g) Four members of the Council shall constitute a quorum and shall have the power to conduct any and all business authorized under this chapter as long as 1 member present is not an ex officio member.

(h) Council members shall not be liable for any loss sustained by the deferred compensation program as a result of their official acts, unless such acts constitute gross negligence or wilful wrongdoing.

60 Del. Laws, c. 146, § 1; 69 Del. Laws, c. 64, § 84; 75 Del. Laws, c. 88, § 20(6); 75 Del. Laws, c. 350, § 163.;

(a) The clerical administration of the deferred compensation program shall be the responsibility of the office of the State Treasurer.

(b) All plans of deferred compensation which may be adopted shall provide that each participating employee will be furnished a quarterly statement of the employee's account, on a form approved by the Council, showing at least the amount of income deferred, the investments purchased and the charges assessed on such purchases.

(c) Each plan of deferred compensation which may be adopted shall provide that in the event of nonrenewal or termination, all accounts enrolled in the plan, including all records, investments and proceeds thereof, shall be transferred to an agent designated by the Council.

(d) At the close of the fiscal year, the office of the State Treasurer, at the direction of the Council, shall prepare an annual report for submission to the Governor and the General Assembly. Such reports shall summarize the activities of the Council during the preceding year and shall report on the status of the deferred compensation program and its various elements.

60 Del. Laws, c. 146, § 1; 70 Del. Laws, c. 186, § 1.;

The Department of Finance and the State Treasurer are authorized to make payroll deductions under this chapter pursuant to regulations adopted by the Council for any public officer or employee of the State who has authorized such deductions in writing. The Treasurer of the State shall account for all such payroll deductions and shall make payment of such deductions in accordance with regulations adopted by the Council. Any income deferred under such a plan shall continue to be included as regular compensation for the purpose of computing the contributions to and benefits from the State Employees' Pension Plan, any pension plan for members of the state judiciary and any pension plan for members of the State Police. Any sum so deferred shall not be included in the computation of any federal or state income taxes withheld on behalf of any such employee, but shall be included for computation of Social Security Administration contributions.

60 Del. Laws, c. 146, § 1; 64 Del. Laws, c. 433, § 1.;

Any provision of this chapter notwithstanding, the maximum amount of income which any 1 employee may elect to defer after June 30, 1975, shall not exceed the limit established by the Internal Revenue Service.

60 Del. Laws, c. 146, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 354, § 39.;

The deferred compensation program may offer any of the following investment options and none other:

(1) Savings accounts in federally insured banking institutions.

(2) United States government bonds or debt instruments.

(3) Life insurance and annuity contracts, provided the companies offering such contracts are subject to regulation by the Insurance Commissioner of the State.

(4) Investment funds registered under the Investment Company Act of 1940.

(5) Securities which are traded on the New York Stock Exchange National Association of Securities Dealers Automated Quotations (NASDAQ) and American Stock Exchange.

60 Del. Laws, c. 146, § 1; 72 Del. Laws, c. 204, § 14.;

The deferred compensation program shall be audited once each year by the State Auditor of Accounts. The Council shall make appropriate arrangements to pay the Auditor of Accounts for the cost of the audit and is required to act within a reasonable period of time upon any recommendations made by the Auditor of Accounts.

60 Del. Laws, c. 146, § 1.;

The costs of administering the deferred compensation program, excluding personnel costs, shall be borne by the participants of the program in accordance with regulations adopted by the Council.

60 Del. Laws, c. 146, § 1; 74 Del. Laws, c. 68, § 81.;

The Deferred Compensation Council is hereby authorized and directed to establish a plan pursuant to § 401(a) of the Internal Revenue Code of 1986 [26 U.S.C. § 401(a)], as amended.

72 Del. Laws, c. 488, § 2.;

Commencing January 1, 2001, and each pay period thereafter, an amount equal to 100 percent of the voluntary contribution of every qualified participant, not to exceed $10 per pay period, shall be credited to the § 401(a) account of each qualified participant making a voluntary deferral under the provisions of this chapter. The employer contribution shall be remitted each pay period by the State Treasurer from an appropriation authorized for this purpose.

Modifications to the match amount per pay period, percentage of contribution matched, number of pay periods per year to be matched and other fiscal and operational aspects of the program are contingent upon funding by the General Assembly and may be administered through rules and regulations promulgated by the Deferred Compensation Council and pursuant to § 401(a) of the Internal Revenue Code [26 U.S.C. § 401(a)].

72 Del. Laws, c. 488, § 3.;

(a) By July 1, 2015, the Deferred Compensation Council shall ensure that 403(b) and 457(b) [26 U.S.C. §§ 403(b) and 457(b)] retirement plans allow participants the option to designate their contributions into the plans as Roth contributions.

(b) By July 1, 2015, the Office of Management and Budget shall make all necessary changes to the state employee payroll system necessary to facilitate the addition of a Roth option to state 403(b) and 457(b) retirement plans for state employees.

(c) By July 1, 2015, the State Treasurer shall take all necessary steps to facilitate the addition of a Roth option to state 403(b) and 457(b) retirement plans.

79 Del. Laws, c. 372, § 1.;