2006 Delaware Code - CHAPTER 102 — DELAWARE SUNSET ACT

§ 10201. Declaration of policy.

(a) It is essential to the maintenance of a healthy state economy, and a government that has the confidence of its citizens, that the State establish a system of periodic legislative review of its commissions, boards and other agencies. This review of agency performance and activities is consistent with other activities and goals of the General Assembly. The primary purpose of this review is to determine whether or not there is a genuine public need for the agency under review; and, if so, to determine whether or not the agency is correctly performing to meet that need.

(b) It is the purpose of this chapter to provide an action-forcing mechanism designed to increase the accountability of various commissions, boards and agencies through increased legislative scrutiny of programs and agencies. It is the intent of the General Assembly to establish a timetable for the initial review of certain commissions, boards and other agencies, and ultimately to review all commissions, boards and agencies established by or receiving financial assistance from the State. The action-forcing mechanism is to terminate the commissions, boards and agencies under review on certain dates, unless affirmatively reestablished by law.

(c) It is not the purpose of this chapter to terminate agencies which are sufficiently meeting a recognized state need, and which are accountable to and responsive to the public interests. Rather, it is the purpose of this chapter to utilize the review mechanism to strengthen and support such agencies. (62 Del. Laws, c. 301, § 3.)

§ 10202. Definitions.

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

(1) "Agency" shall mean any regulatory, administrative, advisory, executive or legislative body of this State including, but not limited to, any board, bureau, commission, department, committee, council, association, authority or any other entity established by an act of the General Assembly of this State which:

a. Is given authority in the Delaware Code to regulate any business, occupation or profession;

b. Is supported in whole or in part by public funds;

c. Expends or disburses public funds; or

d. Is specifically charged by a public body to advise or make recommendations.

(2) "Committee" or "Sunset Committee" shall mean the legislative committee established by this chapter.

(3) "Performance evaluation" shall mean an evaluation of how well an agency has performed, and is performing its functions; and how well the agency is serving, and has served the public needs. (62 Del. Laws, c. 301, § 3.)

§ 10203. Delaware Sunset Committee -- Composition; term of office; Chairperson; appointment; quorum; reimbursement; meetings.

(a) The Delaware Sunset Committee shall be composed of 5 members of the Senate, appointed by the President Pro Tempore; and 5 members of the House of Representatives, appointed by the Speaker of the House. Not more than 3 members of the Senate appointees, nor 3 members of the House appointees, shall be of the same political party.

(b) Except as otherwise provided in this chapter, each member shall serve a term of 4 calendar years. The terms of the members shall be staggered in such manner as to insure that the terms of not less than 2 nor more than 3 members of either House shall expire at the same time.

(c) No member shall serve more than 2 terms. The term of a person not reelected shall automatically be concluded on the day after the time for contesting election results has passed. A member appointed to fill a vacancy shall not complete the former term, but shall begin an entirely new term.

(d) Subject to this subsection, the members of the Committee shall elect a Chairperson every 2 years from among their members. The chairpersonship shall alternate between the Senate and the House of Representatives; provided, however, that when the Chairperson of the Joint Finance Committee and the Chairperson of Legislative Council are both from the same House, the Chairperson of this Committee shall be a member of the other House.

(e) In each General Assembly, all new members of the Committee shall be appointed within the month of January, or within 1 week of organization of each respective House, whichever is later. A quorum shall consist of at least 5 Committee members.

(f) Each member of the Committee is entitled to reimbursement from the appropriate funds of that member's House for the expenses the member actually and necessarily incurs in performing the duties of the Committee. Each request for reimbursement must be approved by the Chairperson of the Committee.

(g) No person who is a member of the Joint Finance Committee or Legislative Council of Delaware shall serve on the Sunset Committee; provided, however, this subsection shall not apply when the minority party in either House has less than 7 members.

(h) Although all meetings of the Committee shall be open to the public, only members of the Committee and others designated by the Chairperson shall be permitted to speak and otherwise participate. (62 Del. Laws, c. 301, § 3; 63 Del. Laws, c. 44, § 1; 70 Del. Laws, c. 186, § 1.)

§ 10204. Delaware Sunset Committee -- Staff; appropriations.

The personnel of the Legislative Council of Delaware and the Office of Controller General shall serve as the permanent staff of the Committee. The Committee may, by majority vote, provide for such other assistance, equipment or expenditure as are within the limits of its budget. The General Assembly shall appropriate such funds as it deems are required by the Committee. (62 Del. Laws, c. 301, § 3.)

§ 10205. Delaware Sunset Committee -- Rules and regulations.

The Committee shall adopt Committee rules and regulations necessary to carry out this chapter. Such rules and regulations shall be permanent, although succeeding Sunset Committees may alter and amend any and all such rules and regulations. (62 Del. Laws, c. 301, § 3.)

§ 10206. Delaware Sunset Committee -- Subpoena powers.

(a) The Committee may issue process to witnesses at any place in this State and compel their attendance as well as the production of books, records, papers and other objects that may be necessary or proper for the purposes of the Committee's proceedings. The Committee may issue attachments when necessary to obtain compliance with subpoenas or other process, which may be addressed to and served by any peace officer in this State. The Chairperson of the Committee shall issue, in the name of the Committee, the subpoenas that the majority of the Committee may direct.

(b) In the event the Chairperson is absent, the designee of the Chairperson is authorized to issue subpoenas, or any other lawful process, in the same manner as is the Chairperson. All testimony taken under subpoena shall be reduced to writing, and must be given under oath subject to the penalties of perjury. (62 Del. Laws, c. 301, § 3; 70 Del. Laws, c. 186, § 1.)

§ 10207. Information to be forwarded in annual report.

(a) Each agency, as a part of the requirements set forth in § 6508 of this title [repealed], or as is required by the annual Budget Appropriation Act from time to time, shall forward the following information in its annual report:

(1) A chart or diagram showing the greater department, division or agency of which it is a part; as well as any other commissions, boards or agencies over which it has jurisdiction;

(2) Its goals and objectives and the statutory authority for same, if any;

(3) All programs in being at any time for the period of 1 year, up to the date of the annual report;

(4) The total value of state funds and/or materials utilized by the agency for each of the last 5 fiscal years;

(5) A listing of all Delaware Code provisions from which the agency derives its rights, duties and functions.

(b) Each agency being reviewed in accordance with this chapter shall up-date the information required by this section, and shall include such current information in its agency report pursuant to § 10208 of this title. (62 Del. Laws, c. 301, § 3.)

§ 10208. Agency report.

Each year on or before January 15, each agency under review shall provide the Committee with:

(1) Information specified in § 10207 of this title;

(2) If subject to zero-based budgeting requirements, the last 5 budget reports relating to all program priorities, activities and accomplishments;

(3) A statement setting forth the performance or achievement of the agency as determined by the criteria for review set forth in § 10211 of this title. Such statement shall not address itself to any other subjects other than the criteria for review;

(4) Any information requested at an earlier date by the Committee, if such information is available. Any other law or statute to the contrary notwithstanding, each agency under review shall, upon request, forward to the Committee, or permit a Committee member or staff member to examine and duplicate, any record, document or file over which the agency has any custody or jurisdiction. (62 Del. Laws, c. 301, § 3.)

§ 10209. Committee responsibilities and duties.

The Committee may give 2 weeks' notice to an agency under review of dates scheduled for Committee meetings, public hearings, etc., but lack of such formal notice shall in no way affect the lawfulness of the Committee's activities or decisions. On or before February 7 prior to that year in which the agency is to be terminated, the Committee shall:

(1) Conduct a thorough review of all information furnished in accordance with § 10208 of this title by each agency under review;

(2) Obtain, verify and review any reports, audits or actions taken by other state agencies concerning the agency under review;

(3) Conduct a performance evaluation of the agency based, at least in part, on the following criteria:

a. If a licensing agency, the extent to which the agency has permitted qualified applicants to serve;

b. The extent to which the agency has operated in the public interests;

c. The extent to which the agency has recommended statutory changes, and whether such changes directly benefit the public; or whether such changes primarily benefit the agency or other entities, and are of only indirect benefit to the public;

(4) Prepare a preliminary written report to be utilized in public hearings, including any preliminary evaluations or recommendations arising from the pre-legislative review under §§ 10207 and 10208 of this title. This report shall be a public record. (62 Del. Laws, c. 301, § 3.)

§ 10210. Public hearings.

(a) Between February 1 and March 7 of each year, public hearings shall be regularly and uniformly convened by the Committee on a continuous basis, as determined by the Chairperson. To encourage participation by the general public, such hearings shall be held occasionally in the early evening hours. The Committee may, on such basis as the Chairperson shall determine, begin public hearings prior to February 1; provided, however, that no hearings shall be held prior to February 1 if the pre-legislative review process set forth in §§ 10207 through 10209 of this title is incomplete.

(b) The highest administrative officer of the agency under review shall be present at each public hearing to answer any questions from members of the Committee, or members of the general public.

(c) At public hearings held in accordance with this chapter members of the general public, representatives of the agency under review and any witnesses on behalf of either the agency or the public shall be heard, and their evidence received. No proffered testimony or written statements by members of the general public shall be unreasonably refused, and such materials as are offered to the Committee shall be retained and considered by the Committee in making its evaluation. Statements and/or written materials offered by the agency or by witnesses on behalf of the agency (including officers and others having a direct interest in the continued existence of the agency) shall be accepted, but such material shall not be deemed to have been offered by "members of the general public" for purposes of this section. (62 Del. Laws, c. 301, § 3; 70 Del. Laws, c. 186, § 1.)

§ 10211. Criteria for review.

The genuine public need for the agency, and whether or not the agency is correctly performing to meet that need, shall not be assumed; the agency shall have the burden of showing, through the criteria for review, that there is such a need and that the agency is meeting that need. The criteria are:

(1) The purpose of the act establishing the agency, and the manner of operation of the agency designed to achieve such purpose;

(2) Whether or not it can be independently established, apart from information supplied by the agency or by persons having a direct interest in the continued existence of the agency, that the absence of the agency or its enabling legislation would be detrimental to the public health, safety or welfare; and whether or not there is a possibility that such absence would be beneficial to the public health, safety or welfare;

(3) An assessment of less restrictive or other alternative methods of achieving the stated objectives of the act establishing the agency, and if such other methods would provide as much protection to the public;

(4) Whether the statute establishes a clear mandate to the agency, and whether the agency has complied with such mandate, if any, in the best interests of the general public;

(5) Whether other programs, activities or agencies of the state government have the same or similar objectives; and, if so, a comparison of the costs and effectiveness of such agencies, programs or activities; and identification of any duplication with those of the agency under review;

(6) Whether, in the past 3 years the agency has recommended to the General Assembly only those statutory changes of primary benefit to the public; or if such changes were primarily of benefit to the agency or to the occupation, business or institution which it serves or regulates;

(7) The efficiency with which the agency meets its statutory objectives;

(8) Whether applications and formal public complaints filed with the agency have been processed effectively, and fairly;

(9) Whether the agency has permitted only qualified applicants for licenses to serve the public; and has not unduly restricted access to any person wishing to engage in a regulated business, occupation or profession;

(10) The extent to which the agency has encouraged participation by the public in making its rules and decisions, as opposed to participation solely by those it regulates; and the extent to which the public participation has resulted in rules compatible with the objectives of the agency;

(11) Whether or not the agency has operated in an open and accountable manner, with public access to records and meetings, and whether there are safeguards against possible conflicts of interest;

(12) Whether "ethical conduct" provisions or rules of an agency, if any, are in fact limited to ethical or moral conduct; or if such provisions contain primarily commercial prohibitions and restrictions relating to profits, advertising, etc.;

(13) The extent to which the agency has been complying with Chapter 58 of this title; Chapter 101 of this title; §§ 6506, 6512 and 6519 of this title; Chapter 100 of this title; and § 8, article XV of the State Constitution or with the requirements to any statute which is a direct successor to those listed in this subdivision; and

(14) Any claimed impact in terms of federal intervention or loss of federal funds if the agency is terminated, which claim shall be fully substantiated. (62 Del. Laws, c. 301, § 3.)

§ 10212. Agency rules and regulations.

(a) Rules review. -- The Committee may conduct a specialized or focused review of 1 or more rules or regulations of an agency. Such a review shall be known as a "rules review," and shall not include the same schedules and procedures as a full-scale agency review.

(b) Procedure for rules review. -- An agency may be selected for a rules review in the same manner as an agency is selected for an agency review under this chapter, or may be selected upon the written request by the chairperson of a standing committee of either house that such a review be conducted. If the committee decides to conduct a rules review of an agency, the name of such agency shall be included among those agencies scheduled for the next immediate review. A rules review may begin immediately if, in the determination of the committee, an emergency exists.

(c) Informational hearing. -- When the committee is to conduct a rules review of an agency, it shall first hold an information-gathering hearing in which any agency, individual or business shall have the right to testify as to any issue concern, defect or problem relating to the rules or regulations under review by the committee. The committee shall also permit members of the public, and any state agency, to send written testimony and other written materials to the committee. The committee shall, from the hearing and written materials, compile a "list of concerns" which shall include those issues, concerns, defects or problems which the committee feels merit closer study and consideration.

(d) Sunset Report and legislation. -- Within 1 week following the hearing, the committee shall meet to consider the accumulated testimony and written materials, and may meet as many times thereafter and continue its review for as long as the committee shall determine. Upon conclusion of its review, the committee shall list those changes in the agency's rules or regulations that the committee deems necessary or appropriate, and shall meet with the highest administrative officer of the agency and/or the administrative officer's designees to determine what changes, if any, can be agreed upon between the agency and the committee. Where an agreement or possible solutions to the remaining items set forth in the "list of concerns" cannot be obtained, the committee shall set forth its recommendations in the next immediate Sunset Report, and shall cause such legislation to be drafted as will, in the determination of the committee, best accomplish its recommendations. (68 Del. Laws, c. 159, § 6; 70 Del. Laws, c. 186, § 1.)

§ 10213. Sunset report.

(a) On or before May 30 of the calendar year in which an agency under review is automatically terminated in accordance with this chapter, the Committee shall present its final report to the General Assembly and to the Governor. The final report shall contain a complete description of the agency and its objectives, including all sub-agencies or programs within the agency; a review of all material obtained pursuant to §§ 10207-10211 of this title; a determination of whether or not there is genuine public need for the agency, and whether or not the agency is appropriately meeting that need; recommendations of the Committee; and such further matters or information as the Committee may wish to include.

(b) The final report shall contain the sunset review schedule of those agencies recommended for review during the 4th year after the report. If the report does not contain a recommended schedule, the sunset review schedule for said 4th year shall be comprised of at least 9 agencies including those agencies automatically scheduled for review, those added by the General Assembly and such additional agencies as are needed to complete the schedule. The additional agencies shall be taken in order of their appearance in the Delaware Code, beginning with the 1st section of Title 1. In any year where the number of agencies placed on the up-coming 4th year schedule and those added by act of the General Assembly are insufficient to complete a sunset review schedule, the schedule shall be completed by adding, starting with Title 1 and in the order in which they appear in the Delaware Code, those agencies which have not been reviewed. (62 Del. Laws, c. 301, § 3; 68 Del. Laws, c. 23, § 1; 68 Del. Laws, c. 159, § 5.)

§ 10214. Committee recommendations.

In its final report concerning a state agency, the Committee may recommend any or all of the following:

(1) Recommend the continuance of an agency, as is; termination of any agency; the termination of any program within the agency; the consolidation, merger or transfer of agencies or of functions from 1 agency to another; or the termination of the agency unless certain conditions are met or modifications made, by legislation or otherwise, within a specified period of time;

(2) Recommend budget appropriation limits for a state agency; and

(3) Recommend, in general or specific terms, such legislation it deems necessary to carry out its decision as to whether or not an agency should be continued or terminated. (62 Del. Laws, c. 301, § 3; 68 Del. Laws, c. 159, § 5.)

§ 10215. Review schedules.

(a) When an agency has successfully completed a review under this chapter or has been reestablished, it shall not be subject to review again until the 6th year following its last review, at the earliest, depending upon the decision of the Committee. The termination date in a review schedule shall cease to apply to an agency recommended for continuance.

(b) Every agency created by law enacted after July 1, 1980, is subject to all provisions of this chapter, and to this section, except as otherwise expressly provided by the law creating the agency. A state agency created by law after July 1, 1980, shall automatically be placed on the appropriate sunset review schedule for review during the 4th succeeding calendar year.

(c) Any agency which has been recommended for termination or reorganization, but which nevertheless is continued by legislative action or otherwise, shall be automatically placed on the review schedule to be again reviewed at the end of 4 calendar years from the date of its last previous scheduled review date. Each agency which is reorganized in accordance with the recommendation of the Committee shall be placed on the review schedule to be again reviewed at the end of 4 calendar years from the date of its last previous scheduled review date. (62 Del. Laws, c. 301, § 3; 68 Del. Laws, c. 159, § 5.)

§ 10216. Termination; reestablishment.

(a) In the event the Committee recommends the termination of an agency, and such agency is not reestablished by an act of the General Assembly, such agency is automatically terminated at the end of June 30 following the date of the Committee report. Where there is no recommendation or no report, the agency is automatically terminated on the date set forth in the review schedule.

(b) When an agency is terminated, each lesser included board, council or agency is also automatically terminated at the same time and under the same conditions, unless such lesser included agency is specifically exempted from termination by the Committee or by law enacted prior to June 30 immediately following.

(c) Where the Committee recommends the reorganization of a review agency, or a merging of the agency with another agency, such reviewed agency shall nevertheless be terminated on the June 30 following the Committee report, unless prior to June 30 a bill is introduced setting forth a proposed reorganization or merger. If such bill is not enacted into law within 7 months from the date of its introduction, the agency shall then be automatically terminated.

(d) Where the Committee recommends continuance of an agency, but only upon its meeting certain conditions or making certain modifications, the agency shall terminate 6 months from the date of the final Committee report (or the termination date recommended by the Committee, whichever is latest) unless such conditions have been met or modifications made to the satisfaction of the Committee.

(e) Any act to reestablish an agency recommended by the Committee for termination or reorganization shall relate only to that specific agency, and the name of the affected agency shall be set forth in the title of the act. (62 Del. Laws, c. 301, § 3; 68 Del. Laws, c. 159, § 5.)

§ 10217. Concluding year for terminated agencies.

(a) Upon the termination of an agency, it may continue in temporary existence until the end of the next succeeding calendar year, in order to properly conclude its business. Unless otherwise provided by law, termination shall not reduce or otherwise limit the power and authority of a terminated agency during such concluding year. Upon the expiration of the concluding year after termination, all rights, powers and functions of the agency shall cease. Any unobligated or unexpended appropriations of an agency terminated under this chapter shall lapse at the end of the concluding year.

(b) All money in a dedicated fund of a terminated state agency shall, after the end of the concluding year, be immediately transferred to the General Fund of the State Treasury, unless otherwise provided for by law. Any law or portion of a law which dedicates money to a specific fund of a terminated agency shall become null and void at the end of the concluding year.

(c) If a terminated state agency is funded in the Budget Appropriation Act for each year of the General Assembly, the terminated agency shall have no authority to spend nor obligate any of such funds for any period after December 31 of the concluding year, unless specifically provided for by law.

(d) If the terminated agency is part of a larger department, division or agency all property and records in custody of the terminated agency shall be transferred to the next largest entity of which that agency was a part. If the terminated agency was itself the largest entity or was an independent agency, the property and records shall be transferred to the Secretary of State.

(e) If a terminated state agency has any outstanding bonded indebtedness remaining, the responsibility for the management of the repayment of such bonded indebtedness through the continuation of that agency's functions, limited merely to the repayment function, shall be vested in the State Treasurer. Any claim by the agency and any claim against the agency shall continue, and shall not be terminated with the agency.

(f) All Delaware Code references to the terminated state agency shall be invalid upon expiration of that agency's concluding year, unless specifically retained. (62 Del. Laws, c. 301, § 3; 68 Del. Laws, c. 159, § 5.)

§ 10218. Merit System employees.

In the event the termination of an agency, program or activity results in unemployment for persons under the Merit System of Personnel Administration, each state employee so displaced shall receive first preference in all other state employment opportunities which arise thereafter for which the employee is qualified, and each such employee shall have the right of first refusal until permanent employment is obtained. (62 Del. Laws, c. 301, § 3; 68 Del. Laws, c. 159, § 5; 70 Del. Laws, c. 186, § 1.)