Civil Division - New Castle County 
June 11, 2003

Carl C. Danberg, Esquire
Deputy Principal Assistant
to the Commissioner

Department of Corrections
245 McKee Road
Dover, DE 19904

Dear Mr. Danberg:

You have asked whether supervisors in the Department of Correction Probation and Parole Unit are included within the protections of the Law Enforcement Officers Bill of Rights, 11 Del.C. §9200 et seq. (Hereafter "LEOBOR") We conclude that all law enforcement officers who are probation and parole officers of the Department of Correction, other than the highest ranking officer in that law enforcement unit, are included in the protections afforded by that statute and are excluded from the disciplinary provisions applicable to members of the classified service under the Merit System, pursuant to 29 Del.C. §§ 5914, 5930 and 5949.

The LEOBOR, 11 Del.C. §9200, applies to all law-enforcement officers specified in 11 Del.C. §9200(b) and regulates disciplinary proceedings brought by law enforcement agencies throughout the State against those officers. See 11 Del. C. §9209. Probation and Parole Officers of the Department of Correction are expressly identified as law enforcement officers covered by §9200(b). The disciplinary procedures recited in 11 Del.C. c. 92 differ substantially from the disciplinary procedures enacted under the Merit System, see generally, The Delaware Rules for a Merit System of Personnel Administration, even though the legislative intent underlying each statute is clearly similar. All covered state employees and certain law enforcement officers are given specific due process rights in any disciplinary proceedings taken against them. The Merit System, initially enacted on July 1, 1966, is a general statute that provides a number of employee rights aside from discipline and includes a grievance procedure and pay classifications. 55 Del Laws c. 443, §1. The newer LEOBOR statute, enacted on May 13, 1985, prescribes rights specific only to the discipline of certain denominated law enforcement officers. 65 Del. Laws c. 12.

On their face, both statutes are clear and unambiguous; however, when read together, a literal application of both the Merit System rules and chapter 92 is impossible in light of the conflicting disciplinary procedures. The Merit System rules violate the manner and timing of the procedures established in §§9200(c)-9307 and, if applied, would therefore nullify the obvious intent and purpose of chapter 92. Thus, the conflict that results when the statutes are read together creates an ambiguity necessitating the application of the rules of statutory construction in order to discern the legislative intent. Coastal Barge Corp. v. Coastal Zone Industrial Control Board, 492 A.2d 1242, 1246 (Del.Supr. 1985); In re Digex Inc. Shareholders Litigation, 789 A.2d 1176, 1200 (Del.Ch. 2000).

"[D]eparture from the literal construction of a statute is justified when . . . a constraint would produce an absurd and unjust result and would clearly be inconsistent with the policies and practices of the act in question." 2A N. Singer, Sutherland Statutory Construction §45:12 [Sands 6^th Ed. 2000)(hereinafter "Sutherland".); See Snyder v. Andrews, 708 A.2d 237, 241 ( Del. 1998); In re Adoption of Swanson, 623 A.2d 1095, 1099 (Del. 1993). Legislative language will be interpreted on the assumption that the Legislature was aware of prior statutes. State v. Botluck, 200 A.2d 424, 427 (Del. 1964). "The general rule is followed that prior and later statutes dealing with the same subject matter although in apparent conflict, should as far as reasonably possible be construed in harmony with each other so as to allow both to stand and give force and effect to each." Sutherland §46:05 at 176. It also can be "assumed that whenever the legislature enacts a provision it has in mind previous statutes relating to the same subject matter . . . [a]nd in the absence of any express repeal or amendment, the new provision is presumed in accord with the legislative policy embodied in the prior statutes." Id §51:02 at 176. In addition, the more recent and/or the more specific statute controls when two statutes by their terms apply to a given set of facts. Cede & Co. v Technicolor, 758 A.2d 485, 494 (Del. 2000); Turnbull v. Fink, 668 A.2d 1370, 1377 (Del. 1995); Sutherland, §51:02 at 186-187. A fair interpretation of the statutes is one that prevents either statute from being rendered inoperative.

In this case, the Law Enforcement Officers Bill Of Rights, the more recently enacted statute, is also the more specific in that it covers only a limited class of state employees who are law enforcement officers as designated in §9200(b) and by its terms, its application is limited to the subject of employee discipline. Thus, 11 Del.C. c. 92 constitutes a limited exception to the application of 29 Del.C. c. 59 in the area of employee discipline. This interpretation produces a reasonable result by giving effect to the intent of the Legislature to protect the rights of all state employees and by allowing both statutes to be fully operative. See, Sutherland, §45:12 at 96. An alternate construction that would apply the Merit Rules to the employees identified in 11 Del.C. c. 92 would negate the effect of that statute and thwart the Legislature's intent.

Therefore, it is the opinion of the Office of the Attorney General that discipline of probation and parole officers must conform to the dictates of 11 Del.C. c.92.

Very truly yours,

Rosemary K. Killian
Deputy Attorney General

APPROVED:

Keith R. Brady
Assistant State Solicitor