29 DE Code § 5943. (2021)
2021 Delaware Code|Title 29 - State Government|Chapter 59. Merit System of Personnel Administration|Subchapter IV. Enforcement and Appeals|§ 5943. Enforcement of chapter by legal action.

§ 5943. Enforcement of chapter by legal action. (a) The exclusive remedy available to a classified employee for the redress of an alleged wrong, arising under a misapplication of any provision of this chapter, the merit rules or the Secretary's regulations adopted thereunder, is to file a grievance in accordance with the procedure stated in the merit rules. Standing of a classified employee to maintain a grievance shall be limited to an alleged wrong that affects his or her status in his or her present position. (b) Any Delaware resident or state employee may maintain a suit to restrain a disbursing officer from making any payment in contravention of any provision of this chapter, the merit rules or the Secretary's regulations adopted thereunder. Jurisdiction for such action shall lie in the Chancery Court. (c) The State may maintain an action for the reimbursement of wages, benefits or both, paid contrary to this chapter, the merit rules or the Secretary's regulations adopted thereunder, against the recipient employee. All moneys recovered in such action shall be paid to the State Treasury and credited to the account from which original payments had been drawn. The appointing authority may take disciplinary action against any employee in the classified service who negligently prepared the document authorizing the overpayment of wages, benefits or both, contrary to any provision of this chapter, the merit rules or the Secretary's regulations adopted thereunder. Disciplinary action shall not be taken against any employee in the classified service who merely approved such document authorizing overpayment unless the person so approving participated in the preparation of such document. (d) Any person appointed or employed in contravention of any provision of this chapter, the merit rules or the Secretary's regulations adopted thereunder, who performs services for which such person is not paid, may maintain an action against any officer or officers who purported to so appoint or employ such person to recover the agreed wages, benefits or both, or the reasonable value thereof, if no pay was agreed upon, plus interest, court costs and reasonable attorney's fees. (e) It shall be the obligation of the appointing authority to determine that documents necessary for placing a person on the state payroll are properly executed prior to the date that the employee begins, transfers to, promotes to, demotes to or in any other way changes the employee's position in state employment. Documentation, depending on the position to be filled, consists of some or all of the following:  (1) Job application; (2) Certification list; (3) Copy of the job posting if a permanent position; (4) Written notification signed by the appointing authority stating:  a. Position being filled; b. Pay grade of the employee; c. Employee's gross pay each pay period; d. Source of funding of the position; e. Two copies of the employee's Social Security card; (5) Hiring approval during a hiring freeze. In the event that an employee otherwise qualified for classified service is properly appointed but improperly placed on the state payroll, the State shall be liable for the wages, benefits or both of the employee during the first 10 working days of the employee's employment. In the event that the employee is not properly placed on the state payroll by the end of the employee's tenth working day, the appointing authority shall lay off the employee until the employee is properly so placed, or be liable to the employee for wages, benefits or both, in accordance with subsection (d) of this section. The review date for persons not properly placed on the state payroll shall be the date the person first reported for duty in that position. (f) For the purpose of subsections (d) and (e) of this section, the Secretary or the Secretary's designee shall determine whether an employee is properly appointed. The Secretary or the Secretary's designee shall certify the appointment by approving the state personnel transaction supplied by the agency. The approval of the Secretary or the Secretary's designee shall relieve any officer or appointing authority from liability because of an improper appointment, except where the improper appointment was effected through the fraud of any officer or appointing authority. The approval of the Secretary or the Secretary's designee shall similarly relieve any officer or appointing authority from liability for the payment of wages, benefits or both arising under subsection (d) or subsection (e) of this section, except where the officer or appointing authority is grossly negligent in disregarding any provision of this chapter, the merit rules or the Secretary's regulations adopted thereunder. Such approval by the Secretary or the Secretary's designee shall not prevent the appointing authority from taking disciplinary action against any employee in the classified service who negligently prepared the document authorizing the overpayment of wages, benefits or both. (g) If the appointing authority wrongfully withholds certification of the payroll account of any employee, such employee may maintain a proceeding to compel the appointing authority to certify such payroll account. (h) No action for the reimbursement of wages, benefits or both, improperly paid to a state employee shall be brought after the expiration of 3 years from the date the wages, benefits or both were improperly paid. (i) Section 8111 of Title 10 shall be applicable to employment between a person and the State. (j) Following the passage of this section, all state agencies shall conduct audits of the payroll records of each of its employees. In the event that the audit indicates that a discrepancy exists between the amount actually paid and the amount that should have been paid, the agency shall notify the employee, the appointing authority, the Secretary of Finance and the Auditor of Accounts, with sufficient documentation to point out the source and amount of the discrepancy, within 10 calendar days of the date of the completion of the audit. In the event that the audit indicates an overpayment, the appointing authority shall provide the Attorney General with the same notice provided the employee. The Attorney General may proceed in accordance with subsection (c) of this section. The appointing authority shall, within 1 pay period, correct the discrepancy on proper personnel payroll forms. (k) For the purpose of this section “appointing authority” shall be as defined in the merit rules adopted pursuant to § 5914 of this title. (l) Notwithstanding any section of the Code, or any uncodified section of the Delaware law to the contrary, no action for reimbursement as hereinbefore described shall be brought by the State for the overpayment of wages or benefits made, up to and including the last day of the pay period following the date this section becomes effective. (m) To permit all state agencies to comply and conduct the audit required by subsection (j) of this section, this section shall become effective 6 months from July 12, 1978. 29 Del. C. 1953, §  5943;  55 Del. Laws, c. 443, §  1;  56 Del. Laws, c. 376, §  8;  61 Del. Laws, c. 523, §  1;  70 Del. Laws, c. 186, §  1;  70 Del. Laws, c. 509, §§  4-6;  75 Del. Laws, c. 88, §  20(6);  75 Del. Laws, c. 350, §  83;  81 Del. Laws, c. 66, §  49;