| SB 198 w/ SA 1, SA 2 | Signed | Poore | SB 187 passed by the 150th General Assembly moved the Office of Child Care Licensing (“OCCL”) from the Department of Services for Children, Youth and Their Families (“DSCYF”) to the Department of Education (“DOE”). This Act cleans up references in the Code that still refer to the OCCL and its responsibilities as part of DSCYF and changes the references to reflect its status and responsibilities as part of DOE.
This bill also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual. | AN ACT TO AMEND TITLES 10, 11, 13, 14, 16, 29, AND 31 OF THE DELAWARE CODE RELATING TO THE OFFICE OF CHILD CARE LICENSING. |
| HB 267 | Signed | Bush | This Act corrects an error in the drafting of Section 4, Chapter 69, Volume 83 of the Laws of Delaware, House Bill No. 164 of the 151st General Assembly, and makes the correction retroactive to the enactment of the law on June 30, 2021. | AN ACT TO AMEND CHAPTER 69 OF VOLUME 83 OF THE LAWS OF DELAWARE RELATING TO DECEDENTS' ESTATES AND TRUSTS. |
| HB 268 | Signed | Baumbach | The bill amends the Charter of the City of Newark by changing the timeline for special elections from no less than 30 and no more than 60 days after a vacancy occurs to no less than 60 and no more than 90 days after a vacancy. In addition, the bill sets the filing deadline for special elections at 29 days prior to the election.
During the two recent special elections, the City of Newark found that the current timeframe is insufficient, given the frequency of city council meetings (at which the council is required to set the date), the lead time for placing notices in newspapers, and reasonable time for residents to decide to file to run and to gather the requisite number of signatures. | AN ACT TO AMEND THE CHARTER OF THE CITY OF NEWARK RELATING TO NOMINATIONS AND ELECTIONS. |
| SB 204 | Signed | Gay | This Act amends the Department of Services for Children, Youth & Their Families (“DSCYF”) required drug testing statute to gain parity in pre-employment drug testing procedures across state agencies that provide services for children and secure care for children or adults. Secure care positions in the Department of Correction, Delaware Psychiatric Center, and DSCYF’s Prevention and Behavioral Health and Youth Rehabilitative Services facilities are historically hard to fill. Because of the sensitive nature of these positions, there is a thorough application and vetting process for applicants, the last steps of which are the pre-employment background checks and drug testing. Despite numerous ongoing efforts to recruit and retain applicants for these positions within DSCYF’s facilities, interested applicants often choose to abandon the lengthy application process in favor of opportunities for faster hiring processes at large employers located nearby.
Currently, the statute allows DSCYF to make a conditional offer of employment to an applicant who has submitted to the required pre-employment drug testing. This Act would allow DSCYF to conditionally hire an applicant and begin training the person after they have provided proof that they have submitted to the required drug testing. This ability is in line with § 5139 of Title 16 of the Delaware Code, which allows the Delaware Psychiatric Center to conditionally hire an applicant “to maintain an appropriate level of patient care,” and § 8922 of Title 29 of the Delaware Code, which simply states that the Department of Correction must test “all security sensitive applicants and applicant employees.”
This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual. | AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE RELATING TO DRUG TESTING BY THE DEPARTMENT OF SERVICES FOR CHILDREN, YOUTH, AND THEIR FAMILIES. |
| SB 203 w/ SA 1 | Signed | Townsend | Section 1. Section 1 of this Act amends Sections 145(c) and 145(g). Amended Section 145(c) corrects a typographical error but otherwise makes no substantive changes.
The amendments to Section 145(g) expressly authorize a corporation to purchase and maintain insurance on behalf of its directors, officers, employees and other indemnifiable persons by or through a “captive insurance company,” which, in general, is an insurer directly or indirectly owned, controlled and funded by the corporation. The captive insurer may be licensed in Delaware or another jurisdiction.
Like third-party insurance, the captive insurance may provide coverage for liabilities incurred by directors, officers, employees and others whether or not the corporation would have the power to indemnify them under Section 145. Thus, captive insurance could be used to provide coverage for, among other things, amounts paid to satisfy judgments and settlements of claims brought by or in the right of the corporation, even though the corporation would not have the power to indemnify the covered persons against such amounts.
Amended Section 145(g) contemplates that captive insurance may be procured pursuant to any “fronting” or other reinsurance arrangement (such as when a corporation obtains insurance from a third-party insurer but, through a reinsurance policy, all or part of the risk of loss is transferred to a captive insurer).
Section 145(g)(1) requires that a captive insurance policy must exclude from coverage, and must provide that the insurer may not make payment in respect, of any loss that arises out of, is based upon or is attributable to any personal profit or financial advantage to which the covered person was not legally entitled (e.g., an undue financial benefit from a self-dealing transaction), any deliberate criminal or deliberate fraudulent act, or any knowing violation of law. Despite these exclusions, directors may be covered under a captive insurance policy for certain liabilities that are not exculpable under Section 102(b)(7), including non-exculpated liability stemming from so-called Caremark or oversight claims where there is not otherwise a finding that the directors knowingly caused the corporation to violate the law.
The coverage exclusions in Section 145(g)(1) only apply if the proscribed conduct has been established in a final, non-appealable adjudication in the underlying proceeding in respect of the claim. They do not apply if the proscribed conduct has been established in an adjudication in an ancillary proceeding by the insurer or the insured to determine coverage. Because the exclusions in Section 145(g)(1) are invoked only after an adjudication in the underlying proceeding, a captive insurance policy could cover amounts paid in settlement of proceedings that allege conduct referenced in Section 145(g)(1). Amended Section 145(g) makes clear that the conduct of one person insured under the captive policy will not be imputed to any other insured person for purposes of applying the conduct exclusions set forth in Section 145(g)(1). In addition, the exclusions in Section 145(g)(1) do not apply to the extent the corporation would otherwise be entitled to indemnify the covered person under the other provisions of Section 145. A corporation that establishes a captive insurance program may include in the insurance policy limitations or exclusions from coverage that are in addition to those prescribed by statute.
Amended Section 145(g)(2) provides that any determination to make a payment under a captive insurance policy must be made either by a third-party administrator or in accordance with the procedures set forth in paragraphs (d)(1) through (4) of Section 145, to ensure that the persons claiming entitlement to payment under the captive insurance policy are not the same persons making the decision whether to pay claims under the policy.
Amended Section 145(g)(3) provides that if any payment is to be made under the captive insurance policy in connection with the dismissal or compromise of any action, suit or proceeding by or in the right of the corporation as to which notice is required to be given to stockholders, the corporation must include in the notice that a payment is proposed to be made under the captive insurance policy in connection with the dismissal or compromise. Section 145(g)(3) thereby affords the reviewing court and stockholders an opportunity to consider the use of assets of the captive insurance company in connection with a compromise of such actions, suits or proceedings. However, amended Section 145(g) does not require a court to make any specific determinations with respect to payments by a captive insurer.
The amendments to Section 145(g) make clear that a corporation that establishes and maintains a captive insurance company shall not, solely by virtue thereof, be subject to the provisions of Title 18 of the Delaware Code regulating insurance companies.
The amendments to Section 145(g) are not intended to prohibit other forms of insurance that would have been permitted under the provisions of Section 145(g) that predated this amendment. | AN ACT TO AMEND TITLE 8 OF THE DELAWARE CODE RELATING TO THE GENERAL CORPORATION LAW. |
| HB 269 | Signed | Spiegelman | This Act amends the Town of Townsend Charter to provide the Town with some flexibility in scheduling its meetings. | AN ACT TO AMEND THE CHARTER OF THE TOWN OF TOWNSEND RELATING TO TOWN COUNCIL MEETINGS. |
| HB 272 | Signed | Bush | This Bill amends the State’s insurance holding company system registration act to designate two additional categories of documents filed under the insurance holding company system registration act as subject to confidential treatment under the law and to incorporate changes adopted by the National Association of Insurance Commissioners related to affiliated transactions for insurers in receiverships. The adopted changes to the model law were developed to address the continuation of essential services by affiliates of insurers undergoing receivership, as well as the receiver’s access to data and records held by affiliates but belonging to the insurer. The amendments, among other things, add certain standards for affiliate transactions of an insurer that is deemed to be in hazardous financial condition or subject to a supervision, conservation or delinquency proceeding, including that such transactions must:
• Allow the commissioner to require a deposit or bond for the protection of the insurer in connection with affiliated transactions;
• Require that all records and data of the insurer held by the affiliate are and remain the property of the insurer; and
• Specify that premiums or other funds belonging to the insurer but collected or held by an affiliate are the exclusive property and subject to the control of the insurer.
The amendments permit the commissioner to require that certain affiliate agreements specify that the affiliate consents to the jurisdiction of the supervision, seizure, conservatorship or receivership proceedings. The amendments also bolster the minimum required provisions that must be included in agreements for cost-sharing services and management services, including to specify that the affiliate will provide essential services for a specified period after termination of the affiliate agreement if the insurer is placed into supervision, seizure, conservatorship or receivership.
This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual. | AN ACT TO AMEND TITLE 18 OF THE DELAWARE CODE RELATING TO INSURANCE HOLDING COMPANY SYSTEM REGISTRATION. |
| HB 281 | Signed | Schwartzkopf | This Act provides for a Deputy Controller General who is authorized to serve as the Acting Controller General if the Controller General dies, resigns, is removed, or is temporarily incapacitated.
This Act codifies the Controller General’s responsibility for staffing the Joint Committee on Capital Improvement and preparing fiscal projections and fee impact statements.
This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual. | AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE RELATING TO THE CONTROLLER GENERAL. |
| HB 289 | Signed | Heffernan | This bill allows liquor stores, farm wineries, brewery-pubs, microbreweries, craft distilleries, and wine auctions to provide curbside service for the sale of alcohol, but makes clear that all sales must comply with all of the regulatory provisions of Chapter 7 of Title 4, including the prohibition against sales to intoxicated persons and persons under 21 years of age. | AN ACT TO AMEND TITLE 4 OF THE DELAWARE CODE RELATING TO ALCOHOLIC LIQUORS. |
| HB 310 | Signed | Heffernan | This Act amends the Fiscal Year 2022 Bond and Capital Improvements Act to (1) authorize the Department of Transportation to use Community Transportation Funds for one-time reimbursements for various projects; (2) redistribute Community Reinvestment Funds to the Department of Transportation; (3) clarify existing funds for Mental Health Services Units are to be distributed as a block grant; (4) authorize drainage project funds to be used for both the Meeting House Branch and Persimmon Park Place drainage projects; (5) reallocate funds for a shellfish aquaculture project; (6) reallocate funds from the Municipal Infrastructure Fund to the Delaware State Fair; (7) include repairs to the responsibilities of the Facilities Management Section; (8) authorize the Office of Management and Budget to acquire property for the Delaware National Guard; (9) authorize the Department of State to identify land for acquisition for the North Wilmington Library; (10) authorize the Office of Management and Budget to transfer a property to St. Anthony’s Community Center Inc.; (11) increase substitute pay to adjust for minimum wage increases; (12) reallocate funds from the Clean Water and Drinking Water State Revolving Funds to create a School Construction Market Pressure Contingency Fund; (13) reallocate funds from the Clean Water and Drinking Water State Revolving Funds for the Riverfront Development Corporation; (14) reallocate funds from the Clean Water and Drinking Water State Revolving Funds to the Urban Redevelopment program; (15) exempt the Delmar School District Parking Lot Project from prevailing wage requirements due to funding source; and (16) authorize local bond shares for the Appoquinimink School District. | AN ACT TO AMEND THE LAWS OF DELAWARE RELATING TO THE BOND AND CAPITAL IMPROVEMENTS ACT OF THE STATE OF DELAWARE AND CERTAIN OF ITS AUTHORITIES FOR THE FISCAL YEAR ENDING JUNE 30, 2022. |
| SB 214 | Signed | Gay | This Act extends the effective date of Chapter 249, Volume 83 of the Laws of Delaware (Senate Bill No. 169 of the 151st General Assembly) from January 1, 2023 to July 1, 2024. | AN ACT TO AMEND CHAPTER 249, VOLUME 83 OF THE LAWS OF DELAWARE RELATING TO THE DELAWARE CHILD CARE ACT. |
| SB 215 | Signed | Sokola | This Act extends the deadline for the Department of Elections to designate all election districts from “before March 1” to “before April 1,” but only for the 2022 election year. The delay in the delivery of the 2020 U.S. Census data to the States has necessitated this change for the 2022 election year. | AN ACT TO AMEND TITLE 15 OF THE DELAWARE CODE RELATING TO ELECTIONS. |
