Instructions and Sample Forms for Education Corporations

Corporations formed for the principal purpose of operating a college, university, school conducting some or all of the grades nursery through twelve, library, museum, historical society with collections or public television and/or radio station are created by the Board of Regents by the issuance of an instrument called a “charter.” The document by which all other education corporations are created is known as a Regents certificate of incorporation.

The powers of a corporation so created are those set forth in the charter document itself, in the Education Law and in the Not-For-Profit Corporation Lawexternal link (NPCL), many of the provisions of which are made applicable to education corporations by the provisions of Education Law §216-a. The NPCL is the basic body of statutory law governing the corporate affairs of education corporations and replaces the former General Corporation Law in that respect.

General Procedures

Procedures and sample forms for the incorporation of libaries are available at http://www.nysl.nysed.gov/libdev/charter/index.html. For other educational entities, the procedures for application of a charter or Regents certificate of incorporation include:

  1. submission to the State Education Department, Office of Counsel, 89 Washington Avenue, Room 148 EB, Albany, New York 12234, of a petition, executed by the proposed incorporators and acknowledged before a notary public;
  2. review of the documents by the Office of Counsel for legal sufficiency; review by the appropriate program office of the Education Department with respect to the relevant educational considerations, including conformance to required educational standards;
  3. possibly one or more site visits by Department personnel to inspect and evaluate the proposed facilities and programs; submission of a staff recommendation to the Board of Regents;
  4. and action by the Regents on the application at a regular monthly meeting.

Since the review process is, of necessity, somewhat time-consuming, the incorporators of a proposed new education corporation, or their attorney, should submit the petition at least four months in advance of the time when they wish the corporation to come into being. Greater lead time is necessary where the institution seeks authority to confer degrees.

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Charter/Incorporation Documents

In most cases, a newly created education corporation will initially be granted a “provisional” charter, valid for a fixed term of from one to five years. At the expiration of the period for which the provisional charter was issued, the charter may either be made “absolute,” if the institution has demonstrated a sufficient degree of stability and permanence, or be extended by the Regents for an additional period. An institution with a provisional charter has all the corporate powers and duties of an institution with an absolute charter, except that in the case of institutions offering courses leading to academic degrees, such degrees are conferred by the Board of Regents until the charter has been made absolute.

In addition to the power to create education corporations, the Regents have authority to amend charters, whether provisional or absolute, to amend Regents certificates of incorporation, to consolidate two or more education corporations created under the laws of this State, and to dissolve education corporations. The procedures and required documents for each type of action by the Regents are set forth below.

With respect to the preparation of the required documents, it should be pointed out that the services of an attorney will help ensure that the papers are complete and meet the legal requirements. Since inadequate papers can cause delay, the use of an attorney is recommended.

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1. Provisional charters word icon(36 KB).

The initial step in an application for a provisional charter is the submission to the State Education Department of a fully executed petition to the Regents, together with two photocopies and a check in the amount of $100 payable to New York State Education Department. As noted above, procedures and sample forms for the incorporation of libaries are available at http://www.nysl.nysed.gov/libdev/charter/index.html .

Upon receipt of a petition, the Office of Counsel reviews it for legal sufficiency and then refers it to the appropriate program office of the Education Department for review in connection with the relevant educational considerations.

When the review of the application has been completed, the petition is submitted to the Regents with a staff recommendation, and the Regents then take formal action upon the petition at a regular monthly meeting. If the Regents action is affirmative, the corporate existence commences immediately. Following action by the Regents, the Office of Counsel advises the incorporators or their attorney of the action taken.

A formal charter certificate, suitable for display purposes, is issued two to three weeks later and is transmitted to the incorporators, or their attorney, by the Office of the Secretary to the Board of Regents.

It should be emphasized that the action of the Regents in issuing a charter, while bringing an education corporation into existence, is not equivalent to “registration” or “licensing” of the institution or its programs. Where registration or licensing is required, separate application must be made. Additional information can be found on this web site at http://www.counsel.nysed.gov/charters/degree_authority.html .

After the incorporators have been notified that a provisional charter has been issued by the Regents, the initial trustees named in the petition should promptly hold an organizational meeting for the purpose of adopting bylaws and electing officers (see NPCL §§405 and 602).

In addition to other matters customarily included in corporate bylaws, provision should be made fixing the number of trustees who shall constitute the full board, within the minimum and maximum numbers permitted by the charter, and fixing the term of office of the trustees (Education Law §226).

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2. Extension of provisional charters word icon(30.5 KB).

If the trustees of a corporation which has a provisional charter are not satisfied that the corporation can qualify for an absolute charter when the term of the provisional charter expires, they may apply to the Regents for an extension of the provisional charter.

The required documents are the original and two copies of a petition, duly executed and acknowledged before a notary public, and the original and two copies of a certification by the secretary of the corporation of a resolution duly adopted at a meeting of the trustees by the affirmative vote of a majority of the whole number, authorizing two or more officers of the corporation (usually the president and secretary) to execute and submit a petition to the Regents for extension of the provisional charter. The fee for extension of a provisional charter is $60, payable to New York State Education Department.

A petition for extension should be submitted not less than four months before the date when the term of the provisional charter will expire and should be filed with the State Education Department, Office of Counsel, Room 148, E.B., Albany, New York 12234.

3. Absolute charters word icon(27.5 KB).

When the trustees of an institution which has a provisional charter are satisfied that the institution is educationally sound and financially stable and capable of relative permanence, they may apply to the Regents for an absolute charter (§3.21 of the Rules of the Regents).

The required documents are the original and two copies of a petition, duly executed and acknowledged before a notary public, and the original and two copies of a certification by the secretary of the corporation of a resolution duly adopted at a meeting of the trustees by the affirmative vote of a majority of the whole number of trustees, authorizing two or more officers of the corporation (usually the president and secretary) to execute and submit a petition to the Regents for the issuance of an absolute charter to replace the provisional charter. The fee for an absolute charter is $60, payable to New York State Education Department.

If the Regents are not satisfied that the institution has attained sufficient stability to warrant the granting of an absolute charter, they may instead grant an extension of the provisional charter for an additional period.

A petition for an absolute charter should be submitted not less than four months before the date when the term of the provisional charter will expire and should be filed with the State Education Department, Office of Counsel, Room 148, E.B., Albany, New York 12234.

4. Regents Certificates of incorporation word icon(36.5 KB).

As pointed out above, the document by which colleges, universities, schools, libraries, museums, historical societies and public television and/or radio corporations are incorporated by the Regents is referred to as a charter. The document by which all other education corporations are created is known as a certificate of incorporation. The procedures and required documents for the issuance of a Regents certificate of incorporation are the same as those pertaining to a provisional charter, except that the petition should request the issuance of a certificate of incorporation. The legal effect of a Regents certificate of incorporation is precisely the same as that of an absolute charter. The fee for a Regents certificate of incorporation is $100, payable to New York State Education Department.

5. Amendment of charters word icon(27.5 KB) or Regents certificates of incorporation word icon(45.5 KB).

If the trustees wish to change the corporate name, to amend or expand the corporate purposes, or to alter in any other way the provisions of a provisional or absolute charter or Regents certificate of incorporation, they may apply to the Regents for amendment of the charter or certificate. The Regents are also authorized to amend the charters of education corporations granted by the Legislature by special act.

The required documents are the original and two copies of a petition, duly executed and acknowledged before a notary public, and the original and two copies of a certification by the secretary of the corporation of a resolution duly adopted at a meeting of the trustees by the affirmative vote of not less than three-fourths of the whole number of trustees, authorizing two or more officers of the corporation (usually the president and secretary) to execute and submit a petition to the Regents for amendment of the charter or certificate of incorporation. The fee for amendment is $60, payable to New York State Education Department.

A petition for amendment of a charter or certificate of incorporation should be filed with the State Education Department, Office of Counsel, Room 148, E.B., Albany, New York 12234.

6. Consolidation of corporations word icon(54.5 KB).

Education Law §223 provides that the Regents may consolidate any two or more corporations chartered by the Regents or incorporated under a special act of the Legislature or under a general law for purposes for which a charter may be granted by the Regents.

In addition, many provisions of Article 9 of the Not-For-Profit Corporation Law, dealing with merger and consolidation of corporations, are made applicable to education corporations by the provisions of Education Law §216-a. Under that Article, merger or consolidation may be effected by the filing of a certificate with the Department of State. However, where one or both of the constituent corporations, or the proposed consolidated corporation, is an education corporation, no certificate of merger or consolidation may be filed except with the consent of the Board of Regents. Since the Regents may consolidate education corporations by order pursuant to Education Law §223, they do not ordinarily consent to the filing of a certificate under NPCL §904. However, under circumstances in which consolidation pursuant to Education Law §223 is not practical, consent to merge with a not-for-profit corporation may be granted by the Board of Regents.

The required documents upon an application for an order of consolidation under Education Law §223 are the original and two copies of a petition, duly executed and acknowledged before a notary public, the original and two copies of an agreement of consolidation, the original and two copies of certificates of approval of the agreement of consolidation by not less than three-fourths of the whole number of trustees of each constituent corporation and, if desired, a plan of merger or consolidation pursuant to NPCL §902. The fee for the issuance of an order of consolidation is $100, payable to New York State Education Department.

A petition for consolidation, with the required supporting documents, should be submitted not less than four months before the date when the proponents would like the consolidation to become effective.

7. Dissolution of corporations word icon(52 KB) .

Education Law §217 provides that where the term for which a provisional charter was issued has expired, without having been extended or made absolute, and upon notice by the Regents, the provisional charter shall terminate and become void and shall be surrendered to the Regents. As a result, the corporation is dissolved.

Education Law §219 authorizes the Regents to revoke a charter or certificate of incorporation under certain circumstances and to dissolve an education corporation upon the request of not less than three-fourths of the whole number of trustees.

Education Law §220 provides that where an education corporation has been dissolved, application shall be made to the Supreme Court for an order directing the disposition of any assets which the former corporation may have following dissolution.

Education Law §221 specifies the procedure for dissolution of an education corporation which has stockholders.

The required documents upon an application by the trustees for voluntary dissolution (Education Law §219, ( 3)) are the original and two copies of a petition for dissolution, duly executed and acknowledged before a notary public, three certified copies (including at least one original), prepared by the secretary of the corporation, of a resolution to dissolve adopted by the affirmative vote of not less than three-fourths of the whole number of trustees, and the original and two copies of a sworn statement by the president and secretary that all taxes payable by the corporation have been paid, and that all outstanding shares of stock (if any) have been surrendered for cancellation. The originals of the charter documents issued by the Regents, and of any extensions or amendments, must be surrendered for cancellation. All documents should be forwarded to the State Education Department, Office of Counsel, Room 148, E.B., Albany, New York 12234. The fee for the issuance of an order of dissolution is $60, payable to New York State Education Department.

When an education corporation is dissolved, it is important that its records be preserved. Such records must be filed either with the State Education Department or at some location approved by the Department. When dissolution is sought by the trustees by petition to the Regents, the petition should seek approval of the proposed disposition of the records. When an order of the Supreme Court directing the disposition of assets is sought, the petition to the Court may request approval of the proposed disposition of the corporate records. In either event, the approval of the State Education Department is required.

Last Updated: February 11, 2014