Chapter 83 Retirement

Editor's Note: This ordinance also repealed former Ch. 83, Retirement, Art. I, County Employees' Retirement Program, adopted 4-5-1988 by Ord. No. 88-05, as amended.

§ 83-1 Authority; administration.

[Amended 5-28-2013 by Ord. No. 13-09]

This article is adopted pursuant to the powers conferred upon the Levy Court of Kent County, Delaware in 9 Del. C. § 4323. The Levy Court of Kent County, Delaware (County government) shall administer the Kent County Employee Retirement Program and shall be vested with all the rights, duties and authority typically reserved for the administration of such a program, including but not limited to determination or selection of investment policy(s), fund allocation(s), investment consultant(s), fund manager(s), investment structure, fund trustee(s), investment type(s), fund administrator(s), and fund contribution(s).

This plan intends to satisfy Code Section 401(a) and other applicable sections of such Code which are applicable to government plans as defined in Section 414(d) of the federal Internal Revenue Code of 1986, as amended from time to time.

The Plan is maintained for the exclusive benefit of covered employees or their beneficiaries as required under Section 401(a).

[Added 12-9-2014 by Ord. No. 14-20]

§ 83-2 Title.

This article shall be known as the "Kent County Employee Retirement Program."

§ 83-3 Definitions; word use.

[Amended 10-14-2008 by Ord. No. 08-21; 2-12-2013 by Ord. No. 13-03; 5-28-2013 by Ord. No. 13-09; 12-10-2019 by Ord. No. 19-25; 10-14-2025 by Ord. No. 25-21]

As used in this article, the following terms shall have the meanings indicated:

ACTUARIAL EQUIVALENT

A benefit of value equivalent to the value of the benefit being replaced, computed using the applicable interest rate and the applicable interest rate as defined herein as in effect on the applicable date of determination.

ALLOWABLE INTERRUPTIONS

Disability as defined in this article.

Leaves of absence granted by County government to employees.

APPLICABLE MORTALITY TABLE

Leaves of absence granted by County government to serve in the armed services of the United States of America or any state, provided that said employee returns to active employment with Kent County within 90 days following the period of leave granted, as provided in federal and state law.

(4)

Voluntary severance of employment for a period not to exceed two years, provided that the former Kent County employee returns to County service and repurchases by pre-tax payroll deduction prior service time at the applicable contribution rate when the employee originally separated employment. The usual vacation and sick leave allowed any employee of any department or agency shall not be considered an interruption from continuous employment.

APPLICABLE INTEREST RATE

The annual rate of interest on thirty-year treasury securities [or such other rate as may be specified by the Secretary of the Treasury for purposes of Section 417(e)(3) of the Code for the month of December of the plan year immediately preceding the Plan Year in which the date of determination occurs.]

The mortality table specified by the Secretary of the Treasury for purposes of Section 417(3)(3) of the Code.

BENEFICIARY

A natural person living at the death of a participant, and shall not include corporations, partnerships, organizations, associations or other entities.

CODE

The Internal Revenue Code of 1986, as amended from time to time.

CONTINUOUS EMPLOYMENT

Service without interruption except allowable interruptions.

COVERED EMPLOYEE

An employee who receives or is eligible to receive retirement benefits as defined in this article. The following persons shall be considered Covered Employees:

Full-time employees.

Elected Officials of Kent County.

Board of Assessment members.

Part-time employees working more than 1,000 hours per calendar year.

Persons holding the following positions shall be excluded from the definition of "covered employees" and ineligible for a County pension:

The Mortgage Commissioner.

Summer Youth Employment Program (or successor) employees.

Part-time (less than 1,000 hours per year), temporary, contracted, or seasonal employees.

Former City of Dover paramedics having contributions made to the City pension plan by the County. Covered employment begins when the contributions to the City pension plan cease, if the former City of Dover paramedic remains employed by the County.

DISABLED

An employee shall be disabled for purposes of this article if he qualifies for and receives disability benefits under the Kent County Long-Term Disability Program. Said disability shall cease when Long-Term Disability Program benefits terminate or the employee becomes eligible to collect retirement benefits.

MILITARY SERVICE

Any period of active duty service in the Armed Forces of the United States including the national guard and reserves, under the provisions of Title 10, Title 32, and Title 37, United States Code, which commences less than 90 days after the person ceases to be an employee and ends less than 90 days before the person again becomes an employee. Provided, if a member fails to again become an employee due to being killed while in active duty service, the member shall be entitled to military service through the date of death.

In no event shall military service include:

Any period ended by dishonorable discharge or during which termination of such service is available but not accepted; or

Any active duty service in excess of five with certain exceptions provided by USERRA.

VESTED PORTION OF THE PENSION

Military service shall be treated as service for purposes of this chapter to the extent required under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

NORMAL RETIREMENT AGE

Age 62.

PLAN YEAR

The calendar year.

That portion of the pension benefits provided for by this article which a covered employee is entitled to receive pursuant to the provisions of § 83-6 of this article.

Words of the masculine gender include the feminine and the neuter, and when the sense so indicates words of the neuter may refer to any gender.

§ 83-4 Eligibility for retirement benefits.

[Amended 6-29-2010 by Ord. No. 10-11; 10-14-2025 by Ord. No. 25-21[1]]

In addition to other requirements under this Chapter 83, Article I, a Covered Employee shall meet the following service requirements to be eligible to receive retirement pension benefits:

Covered Employees hired before July 1, 2009, must have at least five years of service with Kent County.

Covered employees hired after July 1, 2009, but before January 1, 2026, must have at least eight years of service with Kent County.

Covered employees hired on or after January 1, 2026, must have at least 10 years of service with Kent County.

A Covered Employee who has a vested right to benefits under any law in effect prior to this article shall retain the vested right until such time as the employee becomes eligible for retirement benefits as defined in this section. Any Covered Employee who satisfies the service requirements outlined in Subsection A, subsequently terminates their employment with Kent County, and later returns, shall have their prior service credited toward their retirement benefits.

A covered employee who receives retirement benefits and is subsequently elected to public office, including a County office, shall continue to receive retirement benefits in addition to any salary as an elected official as provided in § 83-20B of this article.

The County government may choose to extend retirement benefits to a current or former employee by adding years of service to achieve vesting, eligibility or increase the pension amount for specific individuals determined to be deserving by it as provided in § 83-17E of this article.

Editor's Note: This ordinance provided an effective date of 1-1-2026.

§ 83-5 Retirement age.

Every covered employee who is eligible for retirement benefits under this article may retire after such employee attains the age of 62 years or as hereinafter provided, and shall, after retirement and during the remainder of his/her life, receive the vested portion of the pension fixed by the article, subject to such qualifications and reservations as are contained in this article. Upon reaching his normal retirement age, a covered employee shall be fully vested in his benefits under this chapter.

[Amended 2-12-2013 by Ord. No. 13-03]

A covered employee who is eligible for retirement benefits under this article may select early retirement after serving in covered employment with Kent County as defined herein for at least 30 years at any age, for at least 15 years and attaining the age of 60 or for at least 20 years and attaining the age of 55 years. The employee shall, after such early retirement and during the remainder of his or her life, receive the vested portion of the pension provided by this article.

Nothing in this article shall be construed to make mandatory the retirement of any employee who is a covered employee.

§ 83-6 Vested right to benefits.

Once acquiring a vested right to benefits, an employee shall not lose his right to benefits by reason of leaving County employment except as provided in § 83-20 of this article.

§ 83-7 Retirement pension benefits.

The monthly pension payable shall be 2% of the average monthly base salary of the highest three consecutive years (36 consecutive months) of service with Kent County multiplied by the number of years which a covered employee shall have served in covered employment with Kent County.

[Amended 11-30-2004 by Ord. No. 04-22]

If a covered employee as defined in this article had similar employment with New Castle County, Sussex County or the State of Delaware prior to June 27, 1986, such years of service shall be recognized and included for pension benefits, provided that such covered employee was employed by Kent County on or before June 27, 1986.

The monthly pension payable to employees hired after the adoption of this subsection shall be 1.85% of the average monthly base salary of the highest three consecutive years (36 consecutive months) of service with Kent County multiplied by the number of years which a covered employee shall have served in covered employment with Kent County.

[Added 3-10-2009 by Ord. No. 09-04[1]; amended 12-21-2010 by Ord. No. 10-24]

§ 83-9 Submission of data to County for determination of amount to be raised by taxation.

Editor's Note: This ordinance also provided that retiring eligible employees choosing the $15,000 cash incentive may, at their option and submission of proper documentation, have said incentive rolled over into a qualified retirement or deferred compensation account, if applicable by law. Retiring eligible employees choosing the additional five years of service enhancement will have such benefit determined solely by the County’s pension actuarial consultant and paid out as part of the regular monthly pension benefit. The Personnel Director, in consultation with the County Administrator and department head, may require certain covered employees eligible for the special retirement incentive/enhancement program to delay their retirement date until June 30, 2009, if their immediate or intended retirement date will adversely impact the operations of a County office or department. Eligible employees may appeal any required delay of retirement to Levy Court for a final determination. The individual commissioners of the Kent County Levy Court shall not be eligible to participate in the special retirement incentive/enhancement option. The Personnel Director is hereby authorized and directed to implement this special retirement incentive/enhancement option for those eligible covered employees requesting participation and shall secure from each participant an acceptance agreement containing a suitable waiver of claims statement.

§ 83-8 Disability.

A covered employee who shall become disabled while in covered employment and covered under a County-provided long-term disability insurance shall be considered as remaining in covered employment as defined in this article until his normal retirement date, or the cessation of disability insurance, whichever shall first occur. Disability retirement pension benefits shall be calculated in accordance with § 83-7A of this article.

At the time of the establishment of the tax rate, the County government shall include, in addition to an amount for active employees' salaries or wages, the amounts for those employees who are carried on the pension roll, plus the amount for those employees who might become eligible for retirement during the period covered in such budget.

§ 83-10 Pension benefits; time and manner of payment; optional forms.

The payment of the pension benefits under this article shall be monthly.

The name and address of each employee receiving benefits under the provisions of this article, together with the amount of pension to be received at each payment by each such employee, shall be filed in the Kent County Personnel Office.

Form of benefits.

A covered employee may, with the consent of the government of Kent County, elect in writing one of the following optional forms of retirement benefits, which shall be irrevocable once benefits commence:

A lump sum not to exceed a maximum of $3,500;

Equal monthly benefits payable for life;

Contingent annuitant benefits payable in equal monthly installments during the life of the participant and after his death to his spouse or other designated annuitants in monthly installments either in the same amount (100%) or lesser amount (75%, 50%), as elected by the retiree;

Equal monthly payments for the life of the participant and/or for a period of 10 years certain;

(e)

Equal monthly payments for the life of the participant and/or for a period of five years certain; or

(f)

Any other form of benefit approved by the County government.

The amount paid for any optional form selected above is actuarially equivalent in value to the amount that will be payable in the form of Subsection C(1)(b), except the lump sum option.

A nonspouse beneficiary limitation may be placed on the percentage that can be continued upon the death of a former employee receiving benefits for designated annuitants as contained in Subsection C(1)(c). Such limitation shall follow the rules set in Treasury Regulation § 1.401(a)(9)-6.

[Amended 2-12-2013 by Ord. No. 13-03]

If a covered employee fails to elect one of these forms of retirement benefits, he shall receive pension benefits in the form of Subsection C(1)(b).

Lump sum distributions.

[Amended 5-28-2013 by Ord. No. 13-09]

The County government, upon recommendation of the actuary, may cash out and make a payment by lump sum to any vested former employee expected to receive a de minimus pension, such figure to be determined from time to time by the actuary, but no more than $3,500.

In the event the vested former employee who will receive a lump sum distribution in excess of $1,000 pursuant to Subsection E(1) above does not elect to receive a distribution directly or to elect to have the distribution rolled over to an eligible retirement plan or individual retirement plan pursuant to Code Section 401(a)(31) and the regulations and other administrative promulgations related thereto, the County government shall make such transfer to an individual retirement plan of a designated trustee or issuer and shall notify the vested former employee in writing that the distribution may be transfer to another individual retirement plan.

Pension payable.

[Added 2-12-2013 by Ord. No. 13-03]

Effective January 1, 2002, the annual retirement pension payable under this § 83-10, as adjusted, shall not exceed the maximum limitations of Section 415(b) of the Code and the regulations thereunder, including cost-of-living adjustments. The provisions of Section 415 are incorporated herein by reference and the limitations override any other provision of this chapter. The limitation year shall be the calendar year.

Notwithstanding the preceding subsection, in no event shall a covered employee's annual pension payable under this chapter be less than the benefit which the covered employee had accrued under the chapter as of December 31, 1982; provided, however, that in determining such benefit no changes in the chapter on or after July 1, 1982, shall be taken into account.

Special distribution rules effective January 1, 1989.

[Added 2-12-2013 by Ord. No. 13-03]

Distribution of the entire benefit payable on account of a covered employee shall commence no later than April 1 of the calendar year following the calendar year in which the employee attains age 70 1/2. Distribution may continue over a period no longer than the longest of:

The life of the covered employee;

The lives of the covered employee and a designated beneficiary;

The life expectancy of the covered employee; or

The joint and last survivor life expectancy of the covered employee and a designated beneficiary.

If a covered employee dies after distributions to him have begun, all death benefits shall be distributed to the beneficiary at least as rapidly as under the method of distribution being used before his death.

If a covered employee dies before distributions to him have begun, the death benefits shall be distributed:

Over a period no longer than the longer of the life or life expectancy of a designated beneficiary (and distribution shall begin no later than December 31 of the calendar year after the year of the covered employee's death or a later date prescribed in applicable governmental regulations); or

§ 83-13 Preservation of pension records.

In their entirety by December 31 of the calendar year in which the fifth anniversary of the covered employee's death falls, if longer.

(4)

Any election under this chapter affecting the distribution of a benefit shall conform to incidental death benefit requirements of applicable governmental regulations.

(5)

Effective January 1, 2003, all distributions shall additionally be in compliance with the model amendment for defined benefit plans set forth in Rev. Proc. 2002-29, which is incorporated herein by reference and made a part hereof, but without reference to any of the optional amendments set forth in the "Adoption Agreement" section of that revenue procedure.

(6)

The minimum distribution requirements of Subsection G(1) through (5) shall be applied in accordance with applicable governmental regulations and shall govern, notwithstanding any election affecting distribution or other inconsistent provision in this chapter.

§ 83-11 Death benefits.

The beneficiary of the deceased participant not yet in receipt of benefits who had a vested right to pension benefits at the time of said participant's death shall be entitled to a death benefit under the plan as follows:

When the beneficiary is a surviving spouse, the benefit shall be 50% of the benefit the participant would have received had he/she terminated employment on the date of death, survived to the earliest retirement date, and elected to retire at that date with the single life annuity option under § 83-10C(1)(b).

In the event that at the time of such participant’s death no spouse is living or such spouse has released any claim to benefits in writing in compliance with all applicable laws and regulations, the benefits shall be paid such beneficiary designated by such participant. The benefit shall be the benefit the surviving beneficiary would have received had the participant terminated employment on the date of death, survived to the earliest retirement date, and elected to retire that date with the fifty-percent option under § 83-10C(1)(c) and 83-10C(3).

When there is no surviving spouse and no beneficiary is designated, there shall be no death or other benefit.

Effective January 1, 2007, a covered employee's designated beneficiary who is entitled to an eligible rollover distribution may elect, at the time and in the manner prescribed by the Personnel Office, to have all or any portion of the distribution paid directly to an eligible retirement plan specified by the designated beneficiary in a direct rollover. In the case of a beneficiary who is not treated as a spouse under federal income tax law, the direct rollover may be made only to an individual retirement account or annuity described in Code § 408(a) or § 408(b) ("IRA") that is established on behalf of the designated beneficiary and that will be treated as an inherited IRA pursuant to the provisions of Code § 402(c)(11). Also, in this case, the determination of any required minimum distribution under Code § 401(a)(9) that is ineligible for rollover shall be made in accordance with Notice 2007-7, Q&A 17 and 18, 2007-5 I.R.B. 395.

[Added 2-12-2013 by Ord. No. 13-03]

For deaths occurring after December 31, 2006, while performing military service, the employee’s designated beneficiary is entitled to any additional benefits that would have been provided under the plan had the participant resumed employment and then terminated employment on account of death.

[Added 12-9-2014 by Ord. No. 14-20]

§ 83-12 Retirement of employee.

A covered employee may request retirement with pension in accordance with this article by making a written request to the Personnel Office at least 60 days prior to the date of retirement.

The Personnel Office shall prepare a statement in such form as may be prescribed by the Kent County Levy Court to enable compliance with the provisions of this article. A copy of such statement shall be given to the employee prior to the date of retirement.

All official records of whatever kind or character received or to be received by the Personnel Office on pension cases shall be kept as all other official employee records of the office are preserved.

§ 83-14 Disagreement resolution.

The Personnel Administration Board shall be responsible for settling any disagreement that may arise out of the administration of this article by the Personnel Director. The Board shall adjudicate such disagreement within 30 days of the date of receipt of a written appeal, at a time and place to be fixed by the Board, after due notice in writing to all interested parties at least 10 days prior to the date of hearing. The Board may administer oaths and conduct such acts and make such rules as it deems necessary to carry into effect the provisions of this article. The written concurring decision of any four members shall be final.

§ 83-15 Notice to employee of qualification; resolution of County government.

When the active employee is entitled to the pension benefits of this article, the Personnel Office shall so advise the County government, whereupon such County government shall prepare, sign, seal and deliver to the employee an appropriate resolution in the following form:

RESOLUTION
WHEREAS, The retirement of ___________________________________ (Name) an employee of Kent County, State of Delaware, from ________________ (his or her) duties as ___________________________ (Position Title) in the ________________________ (Name of Dept. or Office) presents a suitable opportunity for expressing the esteem in which we hold _______________________________ (Name) as a good and faithful public servant;
THEREFORE, BE IT RESOLVED, That the County of Kent express its warmest appreciation and thanks to _______________________________ (Name) for the able and loyal manner in which _______________ (he or she) has uniformly performed ____________________ (his or her) public duties and,
BE IT FURTHER RESOLVED, that this Resolution be evidence of ___________ (his or her) right to the pension provided by the Kent County Employees Retirement Program.
(Signed)

	President of the Levy Court of Kent
	County, State of Delaware.

Vice President		Commissioner

Commissioner		Commissioner

Commissioner		Commissioner

If a former employee is vested and entitled to the pension benefits of this article, eligibility shall be certified by the Personnel Director, and no resolution of County government shall be necessary. When a former employee is not entitled to the pension benefits of this article, the Personnel Director shall upon request so advise the former employee in writing.

If a former employee is vested, eligible, and entitled to the pension benefits of this article, but fails to apply upon eligibility due to inability to locate said former employee or beneficiary or some ethical rule, the former employee or designated beneficiary shall be entitled to a lump sum retroactive payment back no earlier than age 62 or age at termination of employment, if later, without accrual of interest or across-the-board increases previously approved by the County government for active recipients.

§ 83-16 Exemption of pension benefits from taxation; attachment; assignability of benefits.

[Amended 5-13-2014 by Ord. No. 14-08]

Except for orders of the Delaware Family Court for a sum certain payable on a periodic basis or for benefits payable under this chapter, the pension benefits provided herein shall not be subject to attachment or execution, shall be payable only to the beneficiary designated, and shall not be subject to assignment or transfer except as may otherwise by provided by law.

§ 83-17 Funding.

The County government shall establish and maintain a Pension Fund which shall be used only for the purpose of paying the benefits provided for under this article and related administrative costs.

An actuary shall at least biennially review the Pension Fund and shall report to the County government whether any additional sums of money are needed to keep the Pension Fund actuarially sound so that sufficient funds will always be available to pay the benefits provided for under this article.

The County government shall annually appropriate to the Pension Fund such sums as the actuary deems necessary to properly maintain the fund.

The County government may from time to time increase the pension benefits across the board for current recipients, provided sufficient funds are available or are reasonably expected to be available to cover the cost.

The County government may choose to contribute such sums as determined by the actuary to purchase years of service to achieve vesting, eligibility, or increase the pension amount for specific individuals determined to be deserving by it.

All eligible covered employees in covered employment shall contribute a percentage of base salary on a pre-tax basis, which is used to calculate the pension benefit, by payroll deduction over the normal pay periods in a fiscal year, or part thereof, toward their pension benefit as follows:

[Added 4-28-2009 by Ord. No. 09-05; amended 12-9-2014 by Ord. No. 14-20]

Effective July 1, 2009, 1% of base salary payable over the normal pay periods shall be contributed by each eligible covered employee.

Upon termination or withdrawal of service of an employee who is not eligible or vested for a service or disability pension, the accumulated contributions, without interest, shall be paid to the employee within six months of separation. At the option of the former employee and submission of proper documentation within six months of separation, said accumulated contributions may be rolled over into a qualified retirement or deferred compensation account, if applicable by law.

[Added 4-28-2009 by Ord. No. 09-05]

All eligible covered employees in covered employment hired between December 21, 2010, and December 31, 2019, shall contribute 3% of base salary on a pre-tax basis in excess of $6,000 payable by payroll deduction over the normal pay periods in a fiscal year, or part thereof, toward their pension benefit.

[Added 12-21-2010 by Ord. No. 10-23; amended 12-9-2014 by Ord. No. 14-20; 11-12-2019 by Ord. No. 19-24]

Employees serving in active duty as a member of the National Guard or military reserve shall not be required to contribute toward their pension benefit for any period of military service encompassing a full month when no hours of work are performed directly on behalf of the County. Such contribution waiver shall not reduce any future pension benefit for the affected employee.

[Added 10-11-2011 by Ord. No. 11-19[1]]

Editor's Note: This ordinance also provided that it shall be retroactively effective as of 7-1-2009.

All eligible covered employees in covered employment hired after January 1, 2020, shall contribute 5% of base salary on a pre-tax basis in excess of $6,000 payable by payroll deduction over the normal pay periods in a fiscal year, or part thereof, toward their pension benefit.

[Added 11-12-2019 by Ord. No. 19-24]

§ 83-18 Trustee.

[Amended 9-16-2003 by Ord. No. 03-22]

The county government may assume the below set forth rights and responsibilities of a trustee or select a trustee to administer and invest the money in the Pension Fund who:

Shall receive such sums as shall be paid to the trustee under the plan.

Shall pay benefits from a fund as directed by the county government and shall be fully protected in doing so.