§ 26.04.108. Disability retirement.

A.

Service-connected disability.

1.

A nonpolice member, regardless of length of service, shall be eligible for a disability retirement annuity upon total and permanent disability which prevents the member from engaging in any gainful employment in a position in the service of the County which the County has available if the disability arose in the performance of an act of duty while in the course of employment by the County, except that a member of the County police who filed an application with the Board for a service-connected disability prior to August 1, 1984, shall be eligible for a disability retirement annuity upon total and permanent disability which prevents the member from performing the duties of a police officer for the rest of the member's life. The amount of the annuity shall be seventy-five (75) percent of the rate of salary of the member in effect at the date of disability.

2.

A police member, regardless of length of service, who files an application with the Board for a service-connected disability on or after August 1, 1984, shall be eligible for a disability retirement annuity in accordance with the following:

a.

Upon total and permanent disability which arose in the performance of an act of duty while in the course of employment by the County which totally incapacitates the member from ever engaging in any gainful employment, the amount of the annuity shall be one hundred (100) percent of the rate of salary of the member in effect at the date of disability.

b.

Upon loss of one (1) or both of any of the following: hand, arm, foot, leg or eye or one hundred (100) percent loss of use thereof resulting from the performance of an act of duty while in the course of employment by the County, the amount of the annuity shall be seventy-five (75) percent of the rate of salary of the member in effect at the date of disability.

c.

Upon total and permanent disability which arose in the performance of an act of duty while in the course of employment by the County, other than in Subsections A.2.a and B.2.b, which constitutes both physical and mental impairment, which impairment results from felonious assault on the member as that offense is defined in 11 Del. C. § 501 (Specific Offenses) et seq. and as determined by the filing of felonious assault charges by the Attorney General's office or, in the event that charges are not filed, by the Board of Trustees, and which prevents the member from performing the duties of a police officer for the rest of the member's life, the amount of annuity shall be seventy-five (75) percent of the rate of salary of the member in effect at the date of disability.

d.

Upon total and permanent disability other than in Subsections A.2.a and A.2.b resulting from the performance of an act of duty while in the course of employment by the County which prevents the member from performing the duties of a police officer for the rest of the member's life, the amount of the annuity shall be determined as follows:

i.

For members with less than five (5) years of service, the amount of the annuity shall be twenty-six (26) percent of the rate of salary of the member in effect at the date of disability.

ii.

For members with more than five (5) but less than ten (10) years of service, the amount of the annuity shall be thirty-three (33) percent of the rate of salary of the member in effect at the date of disability.

iii.

For members with more than ten (10) but less than fifteen (15) years of service, the amount of the annuity shall be forty (40) percent of the rate of salary of the member in effect of the date of disability.

iv.

For members with more than fifteen (15) but less than twenty (20) years of service, the amount of the annuity shall be fifty (50) percent of the rate of salary of the member in effect at the date of disability.

v.

For members with more than twenty (20) years of service, the member shall not be eligible for a service-connected disability annuity, but rather must apply for a service retirement annuity with the benefits stipulated in Section 26.04.107.

3.

The service-connected disability annuities payable under this subsection shall be reduced by amounts received by the member as worker's compensation or any other payments received from the County in lieu of salary.

4.

For employees employed, or who had been extended a written offer of employment, before the effective date of this Ordinance, if the disability outlined in this subsection should continue until the employee reaches the age of sixty-five (65), at that time the disability pension shall cease and he or she shall receive instead a service retirement annuity with benefits stipulated in Section 26.04.107, full allowance being given for a period of disability as credited service and using the rate of compensation for his or her grade and step as of the date that he or she reaches the age of sixty-five (65). A police officer who, prior to July 15, 1991, has either begun to receive a service-connected disability retirement annuity in accordance with this Section or who filed an application with the Board for a service-connected disability annuity prior to that date, which application was not denied by the Board and who is now receiving a service-connected disability retirement annuity and who currently has over twenty (20) years of service, shall be converted to a service retirement annuity effective January 1, 2002, and he or she shall receive a service retirement annuity with benefits stipulated in Section 26.04.107, full allowance being given for the period of disability as credited service and using the rate of compensation for his or her grade step as of the date of conversion.

5.

Any police member who is receiving a disability annuity in accordance with Subsection A.2.d shall convert, upon the twenty (20) year anniversary of that member's date of hire by the County or at age fifty-five (55), whichever comes first, to a service retirement annuity with benefits stipulated in Section 26.04.107, full allowance being given for the period of disability as credited service and using the rate of compensation for his or her grade and step as of the date that he or she reaches the date of the twenty (20) year anniversary or age fifty-five (55), whichever comes first.

6.

Any police officer who is exempted from the mandatory provisions of Subsection A.5, pursuant to Subsection A.4, may opt to be covered by Subsection A.5 by filing with the Board, within one hundred twenty (120) days after the adoption and approval of this subsection, a written election to be so covered. This written election shall be irrevocable. If a police officer making this election has already passed his or her twenty (20) year anniversary date, that officer shall be given an allowance for the period of disability as credited service for the full period of time between the date of hire and the date the election is made. Those police officers who began receiving a service-connected disability annuity between April 1, 1982, and August 1, 1984, who are subject to the offset stipulations contained in Subsection C, if they opt to be covered by the mandatory twenty (20) year conversion, shall no longer be subject to the offset contained in Subsection C from the date of their election until their twenty (20) year anniversary date or age fifty-five (55), whichever comes first.

7.

For employees employed, or who had been extended a written offer of employment, on or after the effective date of this Ordinance, there is no conversion from a disability pension to a service pension.

B.

Non-service-connected disability. A member employed, or who had been extended a written offer of employment, before the effective date of this Ordinance, under age sixty-five (65) having at least five (5) years of credited service who becomes totally and permanently disabled as an employee of the County from any cause other than the proximate result of an act of duty shall be entitled to a non-service-connected disability retirement annuity. A member employed, or who had been extended a written offer of employment, on or after the effective date of this Ordinance, under age sixty-five (65) having at least ten (10) years of credited service who becomes totally and permanently disabled as an employee of the County from any cause other than the proximate result of an act of duty shall be entitled to a non-service-connected disability retirement annuity. This annuity shall be eighty (80) percent of the service retirement annuity earned by the member at date of disability subject to a minimum payment of twenty-five (25) percent of final average salary.

If the disability should occur when the employee is eligible for a pension based on his or her age and service as provided in Section 26.04.106, he or she shall receive that pension instead of a disability pension. For employees employed, or who had been extended a written offer of employment, prior to the effective date of this Ordinance, if the disability should occur and a non-service-connected disability annuity be awarded before he or she is eligible for a pension based on age and service but should such disability continue to that date, the disability pension shall cease at that date and his or her benefits shall be recomputed according to Sections 26.04.106 and 26.04.107, the service pension being computed on the basis of credited service performed before the occurrence of the disability. If employed, or if a written offer of employment has been received, on or after the effective date of this Ordinance, there will be no recalculation of benefits.

C.

Reduction of disability allowance because of gainful occupation. If an employee retired for disability, whether service connected or non-service connected, becomes engaged in a gainful occupation, business or employment and the sum of his or her pay or other remuneration from such occupation, business or employment and his or her disability retirement allowance exceeds the current rate of compensation for the last pay grade and step held by him or her, his or her disability retirement allowance shall be reduced, in accordance with the procedure established in Subsection D, to an amount which, together with the amount so earned by him or her, shall equal but not exceed the current compensation for his or her pay grade and step. Should his or her earnings be later changed, his or her disability retirement allowance shall be adjusted in like manner.

D.

Annual statement of earnings required; notice of pension offset. Each disability retirant shall file with the Board of Trustees, at least annually, by April 15 ^th , a statement of his or her earnings for the previous year on forms furnished by the Board, together with such supporting data as may be requested by the Board to establish a basis for determining earnings for operation of this Section. At the time the Board receives the filed annual report from a disability retirant and preliminarily determines that the retirant's disability pension shall be offset per Subsection C, the Board shall provide the affected pensioner with written notice of that preliminary fact. The notice shall also advise the affected pensioner that he or she may, within ten (10) days of receiving such notice, request in writing a hearing before the Pension Board in order to contest the Board's preliminary determination to offset his or her pension. The Board shall then provide the affected pensioner with the requested hearing prior to reducing the pensioner's disability payments. The Board may from time to time adopt rules for defining earnings and further outlining procedures consistent with the purposes of this Section. Failure of a disability retirant to submit required information upon written request by the Board may, in the discretion of the Board, subject the disability retirant to suspension of his or her retirement allowance payments.

E.

Exemptions. Those former County employees who began receiving disability pensions from the County between July 13, 1977, and April 1, 1982, shall be exempt from the offset provided for in Subsection C and the income reporting provided for in Subsection D. This exemption also applies to those members who shall receive a service-connected disability annuity under Subsections A.2.a and A.2.b. Those members who, prior to July 15, 1991, either have begun to receive a service-connected disability annuity under Subsection A.2.d.iv or who have filed an application with the Board for a service-connected disability annuity under Subsection A.2.d.iv prior to that date, and such application not having been denied by the Board, shall also be exempt from the offset provided for in Subsection C and the income reporting provided for in Subsection D.

F.

Reinstatement of offset sums. Those County disability pensioners who began receiving disability pensions between July 13, 1977, and April 1, 1982, and who, beginning July, 1982, have had reductions in their County disability pension benefits due to application of the offset provided for in Subsection C shall receive full reinstatement of those sums which were deleted from their July, 1982 and subsequent County disability pension payments with their December, 1982 pension checks.

G.

Notice of offset to pension applicants. Each person who applies for disability pension benefits shall be advised in writing, prior to receiving a final determination on whether or not he or she will be granted a disability pension, that such pension, if granted, will be subject to the offset provided for in Subsection C. The written notice shall also advise the disability pension applicant that he or she may apply for other County employment in lieu of leaving the employ of the County as a disability pensioner. Prior to the final approval for disability pension benefits, a disability pension applicant must acknowledge, by his or her signature, that he or she did, in fact, receive the notices outlined in this Subsection.

(Ord. No. 98-047, § 1(26-598), 5-12-1998; Ord. No. 02-024, § 1, 4-9-2002; Ord. No. 06-104, § 6, 11-28-2006; Ord. No. 10-113, § 1(Exh. A), 1-18-2011)