Public benefit corporation


Public benefit corporation

A public benefit corporation is a public corporation chartered by a state designed to perform some public service. A public authority is a type of public benefit corporation that takes on a more bureaucratic role, such as the maintenance of public infrastructure, that often has broad powers to regulate or maintain public property.

Authorities borrow from both municipal corporations law (that is, the laws responsible for the creation of cities, towns, and other forms of local government) and private corporations law. Other public benefit corporations resemble private non-profit organizations, and take on roles that private corporations might otherwise perform. These corporations often operate in heavily regulated industries, such as broadcasting and transportation.

Corporations such as these are often found in common law jurisdictions such as Commonwealth countries, including Canadian provinces and U.S. states.

Origins

Although people generally associate corporations, sometimes negatively, with private business, corporations in theory began as means to serve public purposes. Corporate theory has its roots in primarily government and religious institutions, where the institution itself is identifiable independently of its membership's mortality. For example, if the Pope dies, the Catholic Church continues to exist, just as it continues to exist as generations pass on and get replaced by new members.

Public benefit corporations likely have their direct roots in mercantile capitalism. In the early days of European exploration and colonization, a government or monarch would sometimes grant a charter to an entity allowing it to incorporate and make potentially risky investments. While certainly not public benefit corporations by today's standards, entities such as the Massachusetts Bay Company, Hudson's Bay Company, and the Dutch East India Company arguably are early prototypes of publicly-chartered (in this case, crown-chartered) corporations successfully making risky investments.

History

The first public authority on record is the Port of London Authority, established 1908. According to the Port of London Acts The Authority is a public trust established to "administer, preserve and improve the Port of London." The goal was to create an entity that would be run self-sufficiently like a private company yet remain under the control of the government. The name "Authority" is derived from the founding act of Parliament which repeatedly stated that "Authority is hereby given...."

The special status of this entity and the fact that it remained subject to administrative law was established by the UK courts in "" [1919] 1 KB 176.

Incorporation and powers

Public benefit corporations are generally governed by boards of directors, which are appointed, rather than elected, and, internally, reflect bureaucratic forms. The corporation is government-owned and performs a specific, narrow function for the public good.

Public benefit corporations are most often created by statute. In many Commonwealth countries, public benefit corporations continue to receive charters from the British monarchy. In the United States, they receive their charters usually from states, but possibly from the federal government.

Public authorities are usually created with a specific mandate, such as the construction of bridges, mass transit, etc. Unlike departments or ministries of the state, these corporations usually are enabled by statute to raise revenues through bond issues.

For more information, read below about individual jurisdictions.

Public benefit corporations by location

United Kingdom

The BBC is a public benefit crown corporation in the United Kingdom. Many universities have charters going back centuries, and these too are in theory corporations.

Public authorities include:
* Port of London Authority
* Transport for London

Canada

VIA Rail in Canada is an independent crown corporation offering intercity passenger rail services in Canada. The Canadian Broadcasting Corporation is another example.

The Province of Ontario shares two international public benefit corporations with the U.S. state of New York:
* Buffalo and Fort Erie Public Bridge Authority [http://www.peacebridge.com/] (also known as the Peace Bridge Authority) — international authority that maintains the Peace Bridge link between Buffalo, New York, and Fort Erie, Ontario.
* Niagara Falls Bridge Commission [http://www.niagarafallsbridges.com/] — international public authority controlling various bridges in the Niagara Falls. The Board of Commissioners has eight members — four appointed by the Ontario Premier, and four by the Governor of New York State.

Russia

In Russia the law “On Noncommercial Organizations” describes the status state corporations. It is a special form of noncommercial partnership founded by the state to fulfill socially significant tasks. The activities of each corporation are described in a special federal law. Assets transferred to a state corporation are not state property from the legal point of view. Under the law “On Noncommercial Organizations,” property transferred to as the investment in a partnership is the property of the partnership. The partnership itself is no one's property. It manages its assets as described in its charter. The rights of the founder are considerable in the partnership, but they are still not ownership rights. There is only one founder in a state corporation, and it is the Russian Federation. That is why the state corporation is independent. It is a set of assets that are managed for purposes established in its charter by managers appointed by the founder. State corporations, as a rule, are subordinate not to the government, but to the Russian president, and act to accomplish some important goal. The state corporations can manage those assets as demanded by the sketchily described goals and tasks of the charters and as allowed by the supervisory council, on which there is no one the president does not trust.

United States

Under the United States Constitution, per the United States Supreme Court, the United States federal government is an entity of limited sovereignty that can only exercise those powers conferred upon it by the Constitution (Amendment 10). The states, on the other hand, have unlimited sovereignty. They can exercise any lawful power that is not granted to the federal government under the terms of the U.S. Constitution, provided it is not prohibited to them under their own constitutions, or otherwise restricted by the Constitution of the United States. Under that document, states may not impair the obligation of contract or infringe on certain rights retained by the people under the 9th Amendment to the Constitution of the United States or the 14th Amendment to the Constitution of the United States, among others; they are also guaranteed a republican form of government under that same document; however, in general, the breadth of state authority is far greater than that of the Federal government, though in practice, all of the states, as representative democracies with limited governments, are limited in their powers, especially those powers infringing on certain inalienable rights and human rights that all natural persons retain (but juristic persons do not possess).

Since the U.S. Constitution does not explicitly or implicitly empower the Government of the United States to create corporations outside of the confines of the federal government, the power to define and create corporations (other than as agencies of the U.S. government) is mostly reserved to the individual states. (However, certain corporations enchartered by Act of Congress do exist, mostly non-profit organizations serving the public interest, such as the Boy Scouts of America, as well as various charitable, fraternal, and veterans' organizations. In addition, certain parastatals, which are for-profit, but may exercise unique powers, such as Fannie Mae and Freddie Mac, have Federal charters.)

Private corporations were not so common in the early United States as they are today; corporations were often founded to create a public purpose, such as the maintenance of a toll bridge. Today, public benefit corporations are popular in some states in the United States, perhaps especially New York State. Many interstate compacts in the United States are public benefit corporations.

Examples of Federal public benefit corporations created, owned and operated by the U.S. Government include Amtrak, the United States Postal Service and the Corporation for Public Broadcasting.

Many public authorities in the United States are interstate compacts or local and regional entities covering multiple municipaliies on the county or state level.

California

* Los Angeles County Metropolitan Transportation Authority
* Santa Clara Valley Transportation Authority
* Los Angeles Universal Preschool

Delaware

*The Delaware River and Bay Authority controls the Delaware Memorial Bridge and the Cape May-Lewes Ferry between Delaware and New Jersey, and is a bi-state agency created by an interstate compact with New Jersey.

*DART First State (Delaware Transit Corporation) is an agency of the Delaware Department of Transportation (DelDOT) which operates, funds and oversees bus and passenger rail service.

*Delaware Solid Waste Administration (DSWA) is an independent establishment of the state of Delaware, created in 1975 to oversee solid waste planning, recycling and disposal, and to operate landfills.

Florida

* Miami-Dade Transit
* Jacksonville Port Authority
* Jacksonville Aviation Authority
* Jacksonville Transportation Authority

Illinois

The Bi-State Development Agency is a bi-state agency managing public transportation between southern Illinois and Missouri. It serves the St. Louis metropolitan area.

Maine

In the state of Maine, public benefit corporations [http://www.maine.gov/sos/cec/corp/formsnew/jan12003.htm] :
* are designated as a public benefit corporation by statute; or
* are tax exempt under section 501(c)(3) of the Internal Revenue Code; or
* are organized for a public or charitable purpose and is required to distribute assets to a similar tax exempt organization upon dissolution; or
* have elected to be a public benefit corporation.

Maryland

* Maryland Transit Administration

Massachusetts

* Massachusetts Bay Transportation Authority (MBTA)
* Massachusetts Port Authority
* Massachusetts Turnpike Authority (MTA)

Missouri

See "Bi-State Development Agency".

New Jersey

The New Jersey Turnpike Authority] (NJTA) is a public benefit corporation in New Jersey, created by the New Jersey Turnpike Authority Act of 1948.

The Delaware River and Bay Authority controls the Delaware Memorial Bridge between Delaware and New Jersey, and is a bi-state agency. The Delaware River Port Authority is a bi-state agency of New Jersey and Pennsylvania.The Port Authority of New York and New Jersey is a bi-state agency shared with New York.

NJ Transit, formed in 1979 operates bus, light rail and passenger rail service in New Jersey and in neighboring states as well as funding and planning of bus and rail services and programs.

Although "Public Benefit Corporation" is not a statutorily defined term under State laws (New Jersey Statutes or the New Jersey Administrative Code), such corporations are among those included within the statutorily defined term "State Agency".

New Hampshire

* Manchester Transit Authority (New Hampshire)

New York State

The widespread use of public authorities in the United States was pioneered in New York State by Robert Moses. The approval of the New York State Public Authorities Control Board is required in some cases when creating an authority. An authority may at times levy taxes and tolls; this means that they are not part of the usual state budgetary process, and gives them a certain independence. Furthermore, they may make contracts; because of public authorities' corporate status, there is, generally, no remedy against the chartering State for the breach of such contracts. John Grace & Co. v. State University Constr. Fund, 44 N.Y.2d 84, 375 N.E.2d 377; 404 N.Y.S.2d 316 (1978). On the other hand, as agents of the state, public authorities are not subject to many laws governing private corporations, and are not subject to municipal regulation. Employees of public authorities usually "are not" state employees, but are employees of the authority. "Ciulla v. State", 191 Misc. 528; 77 N.Y.S.2d 545; (NY Court of Claims, 1948). Public authorities can also often condemn property. "See Generally" 87 NY Jur PUBLIC AUTHORITIES Section 1 "et. seq..

Among the major public benefit corporations in New York State, the Port Authority of New York and New Jersey, an interstate compact, and the Metropolitan Transportation Authority, which manages most of the public transportation to, in, and around New York City, might be the most famous. New York has hundreds of lesser-known public benefit corporations. The Urban Development Corporation, founded to provide public housing, now has other priorities, and it boasts no less than 107 subsidiaries with devolved powers. One of these, the Lower Manhattan Development Corporation has been receiving a lot of press, in the wake of the September 11, 2001, terrorist attacks.

New York likely has the most extensive number of public benefit corporations in the United States.

:See "New York State public benefit corporations"

Pennsylvania

In this state, a Municipal Authority can have many similarities to a Public benefit corporation.

The Southeastern Pennsylvania Transportation Authority (SEPTA) provides public transportation in and around Philadelphia.

The Delaware River Port Authority is a bi-state agency of Pennsylvania and New Jersey.

Tennessee

Tennessee is arguably the banner state for the Tennessee Valley Authority's (TVA's) operations, which span a region extending into seven states (most of Tennessee and parts of six others), but the TVA is actually a Federally-owned public authority. The TVA has been key in aiding the region's economic development, most notably in the 1930s during the Great Depressiondubious.

Texas

* Metropolitan Transit Authority of Harris County, Texas
* Port of Houston

Vermont

Like Maine, the state of Vermont defines public benefit corporations broadly. They include public benefit corporations founded by the state and by private entities. The Vermont Economic Development Authority [http://www.veda.org/] is an example of a state-owned public benefit corporation.

Washington

* Port of Seattle

Other meanings

More broadly, a public benefit corporation could be any corporation that exists for a charitable purpose, though these are generally called non-profit corporations if they aren't founded by a government. Some jurisdictions (the U.S. State of Maine, for instance) might define a public benefit corporation broadly. In California, public benefit corporations are one of several types of non-profit corporations.

External links

* [http://www.kevinrkosar.com/metromatters0406.pdf Kevin R. Kosar, "Public Authorities and the Public Good," Metro Matter Newsletter, May-June 2004.]


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