Why Should Delaware Care?
Apparent confusion over the most basic Constitutional questions will result in a change in the state’s pension system for retired lawmakers. The change will give many of them sizable boosts in their monthly payments and well as thousands of dollars in back pay.
Many retired Delaware lawmakers are set to receive boosts in their monthly pension payments because of an apparent failure 27 years ago to codify a law change into the state’s legal code.
It’s a curious and complicated development that questions how an apparent law change can go into effect, then be effectively repealed three decades later after government officials in the executive branch determine that the law is void.
The development also highlights confusion over the most basic of Constitutional questions in Delaware: How the law is officially made.
Such questions are best answered by the Delaware General Assembly’s Division of Research, but officials from that office did not respond to requests to comment for this story.
Last month, retired legislators received letters from Delaware Pension Administrator Joanna Adams that outlined a forthcoming change in their monthly pension payments. The letter stated that the change is happening because Delaware’s legal code “was never updated” following the apparent passage of a law in 1997 that altered how legislative pensions were calculated.
Prior to the change, lawmakers’ pensions payouts were anchored to that of the highest-earning retired legislator.
After the change, the pension office implemented a more standard system, whereby lawmakers who entered the General Assembly after 1997 received payments that were based on a percentage of their own highest years’ earnings.
Now, the legislative pension will revert back to pre-1997 format, Adams said in her letter.
One former lawmaker who shared Adams’ letter with Spotlight Delaware, and asked for anonymity to discuss the issue in-depth, said their pension check is likely to go up many hundreds of dollars each month, as a result of the change.
The lawmaker said another boost in their pension is likely to occur following the retirement at the end of this year of Rep. Peter Schwartzkopf (D-Rehoboth Beach), who served for a decade as Speaker of the House.
Furthermore, the lawmaker also expects to receive retroactive pay that totals tens of thousands of dollars.
If the retroactive amount is similar across the more than dozen former lawmakers who first came to office after 1997, then the total one-time payout will likely cost at least hundreds of thousands of dollars.
Legislative pensions are paid from the Delaware Public Employees Retirement System, an office that manages and invests worker contributions from across the state government. That means a lump sum payment to retired legislators would not hit taxpayers, but would draw down investable funds for other state pensioners. As of June 2023, the state’s various pension funds held more than $12 billion.
In her letter, Adams said the reversion to the pre-1997 system was necessary because “the Delaware Code was never updated with the eligibility and pension calculation changes” three decades ago.
That’s where it gets even more complicated.
The 1997 law change didn’t follow a normal legislative path, whereby the General Assembly considers a bill, passes it, and then the governor signs it into law.
Instead, the change happened after the state’s Compensation Commission made a recommendation that Delaware alter the way in which it pays future, retired lawmakers.
And, because of a quirk in Delaware’s legal code, an official recommendation from a state commission automatically becomes law if it is not rejected by a vote of both houses in the General Assembly.
In 1997, lawmakers did not reject the Compensation Commission’s report about the legislative pensions.
As a result, the change “ultimately became law,” Adams said in her letter.
“But the Delaware Code was never updated,” she said.
| Feb. 1, 1997 | Compensation Commission publishes recommendations |
| June 30, 1997 | General Assembly ends without action, seemingly make recommendations law |
| Jan. 1, 2012 | Pension eligibility terms amended, but error not found |
| March 4, 2024 | Office of Pensions mails letters explaining the identified error |
In an email to Spotlight Delaware, Adams appeared to pull back on the assertion that commission reports can become law. Though she again noted that the Compensation Commission “had the full force and effect of the law,” she also stated that adding new laws “is solely within the power of the legislature.”
When asked if Adams’ interpretation is correct, Robert Scoglietti, the Delaware Deputy Controller General, pointed to state code that says commission reports do “have the force and effect of law … unless the General Assembly shall by joint resolution reject the report in its entirety.”
Going forward, it is not clear if the current legislature plans to pass a new statute that could mirror the change recommended in the 1997 commission report.
When reached for comment, Democratic leadership in the House and the Senate – the group of lawmakers that controls what bills are considered – did not indicate whether they would pass a law, or take any other action otherwise.
A spokesman for the Senate Democratic Caucus emailed a statement that said lawmakers have several “questions, not only about what happened, but about what this means for the State of Delaware going forward.”
“We intend to work with the Office of the Controller General and the Office of Pensions to determine what, if any, legislative action is warranted,” he added.
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