New York state public-benefit corporations

Public benefit corporations in New York State have origins in mercantile capitalism. A shared tradition of English common law and Dutch law may explain their origins.

The New York Court of Appeals provided a thorough history of state laws regarding public authorities in the 1994 case Schulz v. State, 84 N.Y.2d 231. As the court explained, state debt limits were first enacted as a reaction to fiscal crises caused by the state's lending of its credit to "irresponsible" canal and railroad corporations in the early nineteenth century. The state was forced to assume these obligations, which amounted to more than three-fifths of the state's entire debt. In 1846, a referendum requirement was added to the state constitution, prohibiting the state from contracting long term debt without approval by the voters.

As early as 1851, the legislature began to search for ways to evade the constitutional debt limit in order to finance public works projects. Canal certificates, which would be repaid through canal revenues, and which by their terms were not state obligations, were nevertheless held to be unconstitutional in Newell v. People, 7 N.Y. 9 (1852). The court held that the state had a moral obligation to repay the debts if canal revenues proved insufficient, and thus the certificates were deemed "an evasion if not a direct violation of the constitution".

In 1921, the legislature chartered the first state public authority, the Port of New York Authority, as a new vehicle for financing public projects while insulating the state from long term debt obligations. In 1926, the Court of Appeals held in Williamsburgh Savings Bank v. State, 243 N.Y. 231, that the state could disclaim any moral obligation for public authority debts. However, amendments to the 1938 Constitution overruled this case and completely disclaimed the state's responsibility for any public authority debt.

The widespread use of public authorities in New York State was pioneered by Robert Moses in the 1930s and 40s. Much of Moses' power base resulted from his tight control of the Triborough Bridge Authority, which allowed him to earmark revenues from tolls on the bridge for other projects in New York City and around the state. He also served as president of the Jones Beach Parkway Authority (1933–1963), president of the Bethpage State Park Authority (1933–1963), and chairman of the New York Power Authority (1954–1962). Moses, through his control of these authorities, was able to build some of New York's most important public works projects, including the Cross Bronx Expressway, the Brooklyn-Queens Expressway, and various bridges and parkways. The public authority model allowed Moses to bypass many of the legal restrictions placed on state agencies, allowing him to expedite development but also allowing him to hide project financing, contracting and operational information from public scrutiny. Because of this, he has been criticized for wasteful spending, patronage, and refusing to consider public opposition to his projects.

The 1938 constitutional amendments attempted to limit the proliferation of public authorities by specifying that they could be created only by special act of the state legislature. By 1956, 53 public authorities had been created. In 1990, the Commission on Government Integrity concluded that "At present, so far as Commission staff has been able to determine, no one has even an approximate count of how many of these organizations exist, where they are, much less an accounting of what they do." By 2004, the Office of the State Comptroller had identified at least 640 state and local authorities.[5] The current count stands at 1,098.[6]

Some of the most well known major public benefit corporations in New York State include the Port Authority of New York and New Jersey (actually a bi-state authority created by interstate compact), the Metropolitan Transportation Authority, and the Empire State Development Corporation. New York has hundreds of lesser-known public benefit corporations, including Industrial Development Agencies and local development corporations.

The Public Authorities Accountability Act of 2005 created the Authority Budget Office in order "to provide the governor and the legislator with conclusions and opinions concerning the performance of public authorities and to study, review and report on the operations, practices and finances of public authorities...."[1] The ABO is intended to promote transparency and accountability and to improve authority governance.

The New York State Constitution, Art. X, sec. 5, provides that public benefit corporations may only be created by special act of the legislature. In City of Rye v. MTA, 24 N.Y.2d 627 (1969), the court of appeals explained that "The debates of the 1938 Convention indicate that the proliferation of public authorities after 1927 was the reason for the enactment of section 5 of article X.... Abbott Low Moffat, who supported this proposal, told the convention that its purpose was 'to require the Legislature to pass directly itself upon the establishment of each new authority, and to prevent the enactment of general laws pursuant to which a municipal corporation can itself create a corporation of the authority type'".

While major public authorities can only be created by special legislation, many local development corporations have been created under the general Not-For-Profit Corporation Law. These LDCs function in much the same way as other public benefit corporations and public authorities, but do not need to be established by specific state legislation. Additionally, many public authorities have the power to create subsidiary authorities without additional legislative authorization. An example is the Empire State Development Corporation, which decided in 2007 to dissolve 13 subsidiaries and merge 25 others into a single holding company.[7] ESDC still encompasses many subsidiary organizations.[8]

The 1938 Constitution "expressly empowered public authorities to contract debt independently of the State".[9] Because of this, the Court of Appeals has repeatedly affirmed that public authorities are distinct from the state and that the state carries no moral obligation to repay their debts. Although the Constitution prohibits the state from lending its credit to public authorities, it does allow the state to make gifts of money to authorities. As a practical result, this has resulted in some authorities receiving annual funding from the state on a consistent basis. Despite the fairly obvious moral obligation that the state carries to continue funding these authorities, which provide incredibly important public services such as road maintenance and transit operations, the Court of Appeals has continued to approve the fiction created by the Constitution's ban on moral obligation debt. As the Court of Appeals stated in Schulz v. State, 84 N.Y.2d 231 (1994), if "modern ingenuity, even gimmickry, have in fact stretched the words of the Constitution beyond the point of prudence, that plea for reform in State borrowing practices and policy is appropriately directed to the public arena".[9] See also Wein v. State, 39 N.Y.2d 136 (1976); Wein v. Levitt, 42 N.Y.2d 300 (1977).

Financing public projects through public authorities is also attractive because their independent corporate structure theoretically makes them more flexible and efficient than state agencies. Many restrictions placed on state agencies do not apply to public authorities, including, for example, general public bidding requirements (some public bidding requirements do apply under the Public Authorities Law). See Plumbing, Heating, Piping & Air Conditioning Contr. Ass'n v. N.Y.S. Thruway Auth., 5 N.Y.2d 420 (1959). Most public authorities may also make contracts, and because of public authorities' corporate status, there is generally, no remedy against the state for the breach of such contracts. John Grace & Co. v. State University Constr. Fund, 44 N.Y.2d 84 (1978). Many public authorities, such as Industrial Development Agencies and the Empire State Development Corporation, can also condemn property.

The New York State Public Authorities Control Board was created in 1976 to provide oversight for some of the state's most powerful authorities.[10] Sections 50 and 51 of the Public Authorities Law currently require 11 authorities to receive approval from the PACB prior to entering into contracts for project-related financing. There are five members on the PACB board, all of whom are appointed by the governor and serve year-long terms.[11]

Public authorities are currently responsible for more than 90% of the state's debt and 80% of the state's infrastructure, leading some to refer to them as the "shadow government."[12]

Public benefit corporations and public authorities are controlled by boards of directors made up of political appointees. Board members have fixed terms and are, at least in theory, considered to be more independent of political influence than elected politicians and appointed agency heads.[13]

Board members and employees of public authorities usually are not considered to be state employees, but are rather employees of the authority. Ciulla v. State, 77 N.Y.S.2d 545 (N.Y. Ct. Cl. 1948). However, public authority employees are covered by the ethics regulations included in section 74 of the Public Officers Law, and the Public Authorities Accountability Act of 2005 imposed additional ethics requirements on board members of some public authorities. Importantly, authority board members are now required to attend training sessions on ethics and governance issues.[13]

The New York State Comptroller's Office lists four types of public benefit corporations and authorities:

• Class A — these authorities and public benefit corporations have regional or statewide significance
• Class B — according to the Comptroller's office, these "[e]ntities affiliated [are] with a State agency, or entities created by the State that have limited jurisdiction but a majority of Board appointments made by the Governor or other State officials; entities that would not exist but for their relationship with the State."[6]
• Class C — these public authorities have local application.
• Class D — these authorities and public benefit corporations have interstate or international jurisdiction.

For a more complete list, see a list of New York State public-benefit corporations

Some of these corporations, particularly the "authorities," are criticized as being wasteful or overly secretive. There were more than 640 as of 2004 according to a New York Times editorial. Some attempts at reform have been made. According to the editorial:

[New York State Comptroller Alan] Hevesi has offered a comprehensive bill that incorporates some of the best ideas in other legislation circulating in Albany [to reform the authorities]. It would also create a commission to assess whether all 640 authorities set up over the last 80 years still need to exist. The Overcoat Protection Authority, for one, would seem to have had its day.[24]

The Overcoat Protection Authority actually is not the correct name of the entity in question. The correct name of the entity the Times was speaking of is the Overcoat Development Corporation,[25] which was designed to lure a clothing manufacturer to New York from Indiana in the 1980s.(Berry, Dan. "The Cold Facts Of Officialdom, Albany-Style," The New York Times, March 20, 2004)

Lack of oversight is a major concern with New York's authorities. According to the Associated Press:

Out of 643 state and local authorities in New York, only 11 need approval by the Public Authorities Control Board before selling bonds. The comptroller's office gets financial reports from just 53. (Johnson, Mark. "Hevesi proposes reforms for state authorities," Associated Press, February 24, 2004)

In 2004, the New York State Comptroller's Office, headed at the time by Alan Hevesi, became concerned about the debt public authorities were generating:

Most public authorities have the ability to borrow funds by issuing debt. Total public authority debt reached more than $120.4 billion in 2004, and continues to grow. $37 billion of this debt is State-supported, accounting for more than 90 percent of total outstanding State-supported debt.[26]

• New York's political subdivisions are considered municipal corporations. This includes counties, towns, villages, and cities.
• Public-benefit corporation
• List of New York City lists

• NYS Office of the State Comptroller list of Public Authorities
• NYS Authorities Budget Office list of Public Authorities
• NYS Authorities Budget Office website