Stiftel v. Malarkey

• Decision Date: 22 July 1977
• Parties: Albert J. STIFTEL, Andrew D. Christie, George R. Wright, Robert C. O'Hara, Vincent A. Bifferato, Clarence W. Taylor, Joseph T. Walsh, Claud L. Tease, William G. Bush, III, Bernard Balick and Joseph J. Longobardi, Plaintiffs, v. John E. MALARKEY, Donald Dryden, the State of Delaware and Mary Jornlin, Defendants.
• Court: Court of Chancery of Delaware

Page 133

378 A.2d 133

Albert J. STIFTEL, Andrew D. Christie, George R. Wright, Robert C. O'Hara, Vincent A. Bifferato, Clarence W. Taylor, Joseph T. Walsh, Claud L. Tease, William G. Bush, III, Bernard Balick and Joseph J. Longobardi, Plaintiffs, v. John E. MALARKEY, Donald Dryden, the State of Delaware and Mary Jornlin, Defendants.

Court of Chancery of Delaware, New Castle County.

Submitted Feb. 11, 1977.

Decided July 22, 1977.

Victor F. Battaglia and Samuel R. Russell of Biggs & Battaglia, Wilmington, for plaintiffs.

Regina M. Small, Deputy Atty. Gen., Dept. of Justice, Wilmington, for defendants.

DECISION AFTER TRIAL.

JUDGMENT FOR DEFENDANTS.

BROWN, Vice Chancellor.

This is an action brought by the eleven judges who comprise the Superior Court of the State of Delaware. The defendants are sued in their official capacities as Secretary of the Department of Finance, State Budget Director and State Treasurer. The suit seeks a mandatory injunction against the defendants requiring them to cause the plaintiff judges to be paid certain cost-of-living benefits in addition to their regular salaries for the balance of their respective judicial terms. The complaint also seeks a judgment requiring that plaintiffs be paid a monetary sum equivalent to the total cost-of-living benefits which plaintiffs feel they should have been paid from the effective date of the legislative act relied upon to the present. This is a decision after trial. ¹

The elements upon which decision must be based are composed of three separate legislative enactments of the General Assembly together with events preceding the enactment of the first of the three. By Executive Order Number Fifty-Five, signed by the Governor on September 30, 1974, the continual salary demands being made by State employees because of inflation was recognized, and because thereof, and based upon the premise that all State employees should be compensated on an equitable basis, the Executive Order created a "Governor's Task Force on Cost-of-Living Pay Increase Formulas." This Task Force was charged with the responsibility of reviewing all pay scales used in compensating state employees and with analyzing various cost-of-living formulas to determine the most feasible formula for use by the State. The Task Force was further directed to evaluate the cost for a cost-of-living formula recommended for the following three years and to draft proposed legislation for the implementation of such plan. As a result of the efforts of the Task Force, Senate Bill 395, as amended as to portions not relevant here, was adopted. Enacted into law as of June 30, 1975 as 60 Del.L. Ch. 187, Section 1 thereof amended 29 Del.C. Ch. 65 by adding a new § 6532 to read as follows:

" § 6532. Cost-of-Living Salary Supplements

"(a) All employees of the State shall be paid a salary supplement as a percentage of their base pay equivalent to the percentage change in the Consumer Price Index for the Philadelphia region. The Consumer Price Index figure at the beginning of each calculation period shall be subtracted from the Consumer Price Index at the end of the calculation period, multiplied by one hundred and divided by the Consumer Price Index at the beginning of the period to determine the percentage of increase or decrease for cost-of-living for that period. This calculation shall be made each six month period ending December 31 and June 30 and become effective for each succeeding six month period beginning April 1 and October 1 respectively. The supplement percentage may not exceed ten percent on an annual basis.

"(c) For purposes of this section, an 'employee ' is defined as one who works the regularly scheduled full-time hours of the employing agency or at least 30 or more hours per week or 130 hours per month (with allowable interruptions) throughout the year and is compensated with a regular state pay check." (Emphasis added.)

One year later, on July 1, 1976, as part of House Bill 1274, an act making appropriations for the expense of State government for the fiscal year ending June 30, 1977 (commonly referred to as the "budget bill"), and at Section 53 thereof, the following amendments to this new § 6532 were adopted:

"Section 53. (a) Amend Chapter 65, Title 29, Section 6532(a), Delaware Code, by striking said subsection (c) in its entirety.

"(d) Amend Chapter 65, Title 29, Section 6532(a), Delaware Code, by inserting immediately after the word 'State' and before the word 'shall' as the same appear in said section the following:

" ', except elected and appointed officials,' "

While there is inconsistent terminology employed in Section 53(a) of House Bill 1274, it seems that its obvious purpose was to strike in its entirety the definition of the term "employee" as originally contained in § 6532(c) and, by adding the new qualifying language to § 6532(a), to make it clear that all State employees except elected and appointed officials were entitled to the cost-of-living benefits provided by § 6532(a) regardless of the hours worked.

Still later, by House Bill 1306 signed into law on August 3, 1976, a further amendment was made to § 6532 as follows:

"Section 1. Amend Section 6532(a), Title 29, Delaware Code by striking the words ', except elected and appointed officials,' after the word 'State' and before the word 'shall' of said subsection and substituting in lieu thereof the following words:

", except elected officials, the judiciary, cabinet secretaries and members of boards and commissions,'.

"Section 2. Amend Section 6532, Title 29, Delaware Code by adding a new subsection which shall read as follows:

"(c) For purposes of this section, an 'employee' is defined as one who is compensated with a regular State pay check.

"Section 3. The effective date of this Act is July 1, 1976."

The legislative synopsis appearing at the bottom of House Bill 1306 provides the following notation as to its purpose:

"This Bill clarifies the intent of House Bill No. 1274 as amended and enacted for the exclusion of the above-stated positions from receipt of cost-of-living salary adjustments and provides for the definition of an 'employee' previously deleted in the statutes."

Based upon this sequence of legislative enactments plaintiffs contend that when 29 Del.C. § 6532 was first adopted it clearly included members of the State judiciary within its scope. They say this is amply illustrated by the fact that the General Assembly went to the trouble of two subsequent amendments in an effort to remove them. They further take the position, however, that the amendatory acts were ineffective in view of Article XV, § 4 of the Delaware Constitution of 1897 which provides that

"No law shall extend the term of any public officer or diminish his salary or emoluments after his election or appointment."

They argue that once the cost-of-living salary supplement was extended to them by the adoption of Senate Bill 395, it became an emolument of office which could not thereafter be taken away. ²

Plaintiffs further take the position that Senate Bill 395, and the definition of covered employees contained therein, is clear on its face and requires no construction. Should statutory construction be required, however, they place reliance on two other factors which they feel clearly establish an original legislative intent to apply the cost-of-living benefits to public officers of the State, including the judiciary, as well as to other State employees.

First, the legislative discussions of Senate Bill 395 prior to its adoption were transcribed and placed into evidence. Considering the nature and cost of the proposed legislation, these discussions were relatively brief. From their content there is no specific indication that anyone other than members of the General Assembly were to be excluded from coverage. Mr. Malarkey, the Secretary of Finance, was called to the floor of both the Senate and House of Representatives to explain Senate Bill 395 and to answer questions concerning it. Malarkey was also the head of the Governor's Task Force which drafted and proposed the legislation. No questions were asked concerning whether or not the members of the judiciary and other public officers were intended to be included, nor was any mention of the point made by Malarkey. At best, he did point out that the bill contemplated cost-of-living benefits for some 1200 "exempted" State employees as well as, apparently, employees within the State merit system. Mr. Malarkey also indicated that he considered the bill to extend its benefits to him as a Department head and governmental officer.

Secondly, plaintiffs rely on the testimony of Donald Dryden, then the State Budget Director. It is to be recalled that one of the functions of the Governor's Task Force was to determine the amount of money that would be necessary to fund such cost-of-living plan as might be recommended and adopted. Mr. Dryden was given the responsibility of making this cost estimate. Being without guidelines, he did so by the simple method of going through the State budget and adding up the salaries of all persons in the employ of the State (with one exception which is not material here). In the process, he included the salaries of all members of the judiciary. To the total figure obtained was applied an estimated cost-of-living increase percentage so as to arrive at an amount to be appropriated by Senate Bill 395 to cover the first-year cost of the salary supplement created by the bill.

Thus plaintiffs argue that since there is no indication in the legislative discussions that they were not to be included, and since judicial salaries were included along with all others in calculating a first-year appropriation to fund the cost-of-living supplement created, then any ambiguity in 29 Del.C. § 6532 must be resolved in favor of the obvious intention of the General Assembly to extend the cost-of-living supplement to members of the judiciary as well as other qualifying State...