Between Federal regulations and State law, the rules governing municipal housing authorities are vast and complex. New York has enacted both the Public Housing Law and the Public Authorities Law. Municipal housing authorities provide public housing and are a type “public authority” so both laws should apply, right? Wrong. Municipal housing authorities are only subject to the Public Housing Law. While that answer may seem simple— and is simple— finding it is anything but. And for a housing authority board, the distinction between the Public Housing Law and Public Authorities Law is critical.
In New York, Chapter 44-a of the Consolidated Laws, entitled “Public Housing Law,” governs municipal housing authorities. Article XIII specifically enumerates all the municipal housing authorities that exist in the State. As of 2021, there are 170 municipal housing authorities in total. As the name suggests, the Public Housing Law applies only to municipal housing authorities.
While Chapter 44-a is devoted solely to municipal housing authorities, Chapter 43-a, entitled “Public Authorities Law,” covers many different types of authorities and it is not readily apparent whether housing authorities are included. Indeed, Chapter 43-a, enumerates a wide variety of public authorities, including park authorities, bridge authorities, port authorities, parking authorities, and so on. Furthermore, the Public Authorities Law contains many provisions analogous to those found in the Public Housing Law. Missing from the Public Authorities Law, however, is any current mention of municipal housing authorities anywhere among the hundreds of public authorities enumerated therein. Until 1957, municipal housing authorities were part of Chapter 43-a but all sections explicitly relating thereto were repealed with the creation of Chapter 44-a.
A further reading of the Public Authorities law reveals that public authorities are subject to oversight by the Authorities Budget Office (“ABO”). The ABO is “an independent entity within the department of state, which shall have and exercise the powers and duties provided by [the Public Authorities Law].” The ABO was established in 2009 but dates back to 2006, when the Public Authorities Accountability Act (“PAAA”) was signed into law. The PAAA was enacted to codify the Model Governance Principles, to provide greater oversight, to create an independent inspector general, and to provide new rules for disposing of public authority property. A review of the ABO’s website and the highly-detailed 2020 Annual Report on Public Authorities in New York State reveal no mention of any municipal housing authorities. Furthermore, in the 2006 Commission on Public Authority Reform Report, the Commission specifically recommends excluding municipal housing authorities from the PAAA because they are under the authority of the Department of Housing and Urban Development or “HUD.” In short, reference to municipal housing authorities is entirely absent from both the Public Authorities Law and the entity charged with the oversight of public authorities.
It seems clear that the Public Housing Law is separate and distinct from the Public Authorities Law. Moreover, there is no evidence that the Public Authorities Law applies to municipal housing authorities. The use of the term “authority” to describe both municipal housing authorities and all “other” authorities muddies the statutory distinction and likely causes some confusion. For example, the Appellate Division, Second Department in Bass v. City of New York held that municipal housing authorities “enjoy an existence as a public authority separate and apart from the State and the municipality.”
In sum, municipal housing authorities are a type of public authority but not a “Public Authority” controlled by and subject to the Public Authorities Law. Rather, municipal housing authorities have been distinguished from other types of public authorities and are governed by their own statute, the Public Housing Law.
The distinction between municipal housing authorities and Public Authorities may not last forever though. In January of 2019, New York State Senate Bill S2443 was introduced and its purpose is to add municipal housing authorities to the list of entities that fall within the purview of the public authorities reform legislation and the Authorities Budget Office. Bill S2443 has yet to advance past Committee but it may be a sign that legislatures see a need for greater oversight of municipal housing authorities.
Though many have lauded the repeal of Section 50-a, there is no question that it will create new challenges for municipalities attempting to navigate the already-complex FOIL laws.