In the Matter of
PUBLIC FINANCE CONSULTANTS, INC., ROBERT D. FOWLER, DOLPHIN AND BRADBURY, INCORPORATED, and ROBERT J. BRADBURY,
ORDER INSTITUTING PUBLIC ADMINISTRATIVE AND CEASE-AND- DESIST PROCEEDINGS PURSUANT TO SECTION 8A OF THE SECURITIES ACT OF 1933 AND SECTIONS 15(b), 15B AND 21C OF THE SECURITIES EXCHANGE ACT OF 1934
The Securities and Exchange Commission ("Commission") deems it appropriate and in the public interest that public administrative and cease-and-desist proceedings be, and hereby are, instituted pursuant to Sections 15(b), 15B and 21C of the Securities Exchange Act of 1934 ("Exchange Act") against Dolphin and Bradbury, Incorporated ("D&B") and Robert J. Bradbury ("Bradbury") and that public cease-and-desist proceedings be, and hereby are, instituted pursuant to Section 8A of the Securities Act of 1933 ("Securities Act") against Public Finance Consultants, Inc. ("PFC"), Robert D. Fowler ("Fowler"), D&B and Bradbury (collectively, "Respondents").
The Commission's public files disclose that:
D&B is a broker-dealer registered with the Commission pursuant to Section 15(b) of the Securities Exchange Act of 1934 ("Exchange Act").
Bradbury is chief executive officer of D&B.
As a result of an investigation, the Division of Enforcement ("Division") alleges that:
As more fully described below, in July 1998 the Dauphin County General Authority publicly offered and sold $75.35 million of municipal bonds ("the Bonds") to finance the purchase of the Forum Place office building in Harrisburg, Pennsylvania. The Official Statement and financial projections used to market the Bonds to prospective investors were misleading and omitted to state material facts about Forum Place, specifically the scheduled departure of a major tenant. Professionals involved in the Bond issue neither corrected the misleading information in the documents nor alerted the Authority to the deficiencies. To date, the Authority has been unable to replace the departing tenant, and the Bonds are currently in default.
1. Public Finance Consultants, Incorporated ("PFC") is a Harrisburg financial advisory business incorporated in Pennsylvania in 1986. Robert Fowler co-owns PFC, acts as its president, and controls its business functions. The firm is not registered with the Commission. PFC, through Fowler, has served as financial advisor to the Authority not only in connection with the Bonds, but also on almost every bond issue of the Authority from 1985 until approximately 1999.
2. Robert D. Fowler, age 51, through PFC, served as financial advisor to the Authority for the Bonds through PFC. Indeed, Fowler also served as financial advisor to the Authority on nearly every transaction in which the Authority was involved from 1985 to approximately 1999. The Authority relied upon Fowler to organize and shepherd its transactions and to provide guidance and advice with respect to its municipal securities. Prior to founding PFC, Fowler had worked for 28 years as an investment banker in the municipal securities industry for various broker-dealers.
3. D&B is a broker-dealer located in Philadelphia, Pennsylvania, specializing in the underwriting of municipal securities, and has been registered with the Commission pursuant to Section 15(b) of the Exchange Act since 1986. D&B underwrote the Bonds.
4. Robert J. Bradbury, age 56, has approximately 35 years of experience in the underwriting of municipal bonds and related broker-dealer activities. Bradbury is chief executive officer of D&B, and acted as the investment banker for the Bonds underwritten by D&B. He has been licensed with the National Association of Securities Dealers since 1969.
The Dauphin County General Authority ("the Authority") was incorporated in 1984 under the provisions of the Pennsylvania Municipality Authorities Act, and is based in Harrisburg, Pennsylvania. The Authority publicly offered and sold in July 1998 two series of tax-exempt municipal securities, specifically $72.25 million Office and Parking Revenue Bonds, Series A of 1998, and $3.1 million Subordinated Office and Parking Revenue Bonds, Series B of 1998, to finance the Authority's purchase of Forum Place.
1. In July 1998, the Authority offered and sold the Bonds to finance the purchase of Forum Place, a building that was fully leased at the time to various departments and agencies of the Commonwealth of Pennsylvania (the "State"). Fowler presented the Forum Place transaction to the Authority, providing details of the proposed transaction, and recommended the underwriter and bond counsel to the Authority. Revenues derived from Forum Place office space or parking leases were the sole source of funds used to repay the Bonds. In order to maintain the tax-exempt status of the Bonds, only 10% of the space at Forum Place could be leased to entities other than state or local government units or charitable organizations.
2. The Authority offered the Bonds through the Official Statement, which contained descriptions of the Bonds, Forum Place, and the existing Forum Place office space and parking leases.
3. Counsel to D&B ("Underwriter's Counsel") drafted the Preliminary Official Statement. Underwriter's Counsel asked Fowler for assistance in obtaining information about the existing office leases, and in response Fowler forwarded to Underwriter's Counsel copies of the relevant lease agreements. Underwriter's Counsel then distributed the draft Preliminary Official Statement to Bradbury, Fowler and others, providing them with the opportunity for comments and changes. Bradbury discussed the Preliminary Official Statement with Underwriter's Counsel. Fowler reviewed the Preliminary Official Statement prior to its distribution to Authority board members at the Authority's public meeting on July 8, 1998. At that meeting, the Authority members voted to approve the content of the Preliminary Official Statement without changes, and authorize the distribution of the final Official Statement. However, the Authority members read little, if any, of the Preliminary Official Statement prior to their vote. The Official Statement was finalized by July 17, 1998.
4. The Authority members trusted and relied upon PFC and Fowler to ensure that the bond transaction was properly structured, and that all documents, including the Official Statement, were complete, accurate, and contained all necessary disclosures. Fowler understood that the Authority depended upon him for these purposes. Fowler had a fiduciary relationship, or a similar relationship of trust and confidence, with the Authority. Further, Fowler substantially participated in the drafting of the Official Statement.
5. Under the Commission's Rule 15c2-12, 17 C.F.R. §240.15c2-12, D&B was obligated to obtain and review a near-final version of the Official Statement prior to bidding for or purchasing the Bonds. Bradbury was the individual at D&B responsible for conducting that review.
6. At the July 8, 1998 meeting, the Authority sold $75.35 million of the Bonds to D&B. In addition, the Authority sold approximately $10.9 million of subordinated bonds to the building's seller. One of the institutions that purchased the Bonds from D&B was a national broker-dealer, which promptly re-sold the Bonds to its retail customers. There were no limitations restricting the sale of the Bonds to retail investors, and the Official Statement did not contain any warnings or caveats to the effect that the Bonds were only appropriate for certain types of investors. By the closing on July 31, 1998, retail investors located across the nation had purchased over $1 million of the Bonds. Two hundred copies of the Authority's final Official Statement were printed for distribution to investors.
7. After the closing, PFC received $102,000 from the Authority for its services. D&B received an underwriter's discount of $753,500.
8. The Authority has defaulted on payment of the Series B Bonds. It also has technically defaulted on the Series A Bonds, and has drawn down money from the debt service reserve fund to meet its scheduled debt service payments on those Bonds. The Forum Place building currently is in receivership.
1. In 1994, a fire destroyed a portion of the building that housed the Pennsylvania Department of Transportation's ("PennDOT") offices, forcing the State to find temporary alternative space for PennDOT employees until the building was either renovated or replaced. In 1995, PennDOT entered into a lease for 80% of the office space at Forum Place. PennDOT's lease expired in November 2001, and contained a one-year renewal option. PennDOT's lease payments accounted for more than 60% of total Forum Place lease revenues.
2. In January 1996, the State announced plans to construct the new Keystone Building for use by PennDOT and other State agencies. The target date for completion of the Keystone Building was late 2001.
3. At all relevant times, each Respondent knew, or was reckless in not knowing, that PennDOT intended to vacate Forum Place as soon as the Keystone Building was completed. Further, at all relevant times, each Respondent knew, or was reckless in not knowing, that PennDOT did not intend to renew or extend its Forum Place lease beyond the one year renewal option that expired in November 2002. In addition, at all relevant times, each Respondent knew, or was reckless in not knowing, that the State had not committed to leasing any of PennDOT's space at Forum Place after the existing PennDOT lease expired.
4. At all relevant times, each Respondent knew, or was reckless in not knowing, that the Official Statement for the Bonds did not disclose PennDOT's scheduled move to the Keystone Building.
5. The State has generally entered into leases of not more than ten years. However, State agencies frequently remained in their leased space pursuant to new leases, in part to avoid the costs of moving. Fowler and Bradbury knew that State agencies generally stayed in their leased space for extended periods of time beyond the original lease expiration.
6. The Preliminary Official Statement for the Bonds stated that there was no requirement or guarantee that tenants would renew or extend existing leases, and did not disclose PennDOT's move to the Keystone Building. No other information was provided in the Official Statement concerning the supply of, or demand for, office space by eligible tenants in the Harrisburg area. Underwriter's Counsel, which drafted the Preliminary Official Statement, was unaware of PennDOT's planned move. The Authority, Bradbury and Fowler each knew before receiving the Preliminary Official Statement that PennDOT was scheduled to move to the Keystone Building once it was completed. Fowler knew that the Preliminary Official Statement did not disclose PennDOT's move to the Keystone Building. Bradbury knew or was reckless in not knowing that the Preliminary Official Statement omitted PennDOT's move the Keystone Building.
7. Fowler provided to the Authority, Bradbury and others financial projections he prepared to determine the cash flow necessary from tenants to repay the Bonds. The financial projections included income from PennDOT through 2008. The document indicated that PennDOT's lease expired in 2001, but omitted information about PennDOT's relocation to the Keystone Building. Bradbury and D&B salespeople gave copies of the financial projections, together with copies of the Preliminary Official Statement, to prospective investors in late June and early July 1998.
8. Authority Board members and professional advisors expressed concerns about the future use of PennDOT's space once it was vacated. In an effort to address these concerns, Fowler and the Authority's executive director, among others, met with the Secretary of the Pennsylvania Department of General Services ("DGS") to determine the State's plans for continued use of Forum Place after PennDOT's departure. While the DGS Secretary stated that he could see using Forum Place to accommodate displaced State employees in the event other aging state-owned buildings were renovated in the future, at that time no such renovation projects had been funded. The DGS Secretary indicated that he could not commit the State for any continued use of space at Forum Place.
9. Despite the lack of any oral or written commitment from the DGS Secretary or any other State official, Fowler advised the Authority at its July 8, 1998 meeting that the DGS Secretary could see using Forum Place for 20 years. Fowler did not discuss with the Authority at that meeting or at any other time that the Official Statement was misleading and required disclosure of PennDOT's scheduled move to the Keystone Building. Fowler also did not inform the Authority of its potential liability for failing to disclose the existence of the Keystone Building or PennDOT's scheduled move. At the July 8th meeting, the Authority approved the content of the Preliminary Official Statement and the final Official Statement, including the general warning that "there is no commitment, requirement or guarantee that the Commonwealth will renew or extend any of the office leases." This general warning, without disclosure of PennDOT's move to the Keystone Building, misled investors as to the possibility that PennDOT might renew its lease.
10. Neither Bradbury nor Underwriter's Counsel attended the July 8, 1998 meeting of the Authority, but Bradbury knew that the Authority sold the Bonds to D&B at that meeting. Bradbury did not discuss the disclosure of PennDOT's move to the Keystone building with Fowler or any other individuals participating in the Forum Place transaction.
11. Prospective investors generally were unaware of PennDOT's scheduled move to the Keystone building, and believed that PennDOT was likely to remain at Forum Place beyond the expiration of its lease. Prospective investors came to this conclusion in part because the Official Statement and the financial projections were misleading, implying that PennDOT might renew its leases, and failed to disclose PennDOT's scheduled move to the Keystone Building. In addition, D&B gave investors a 1997 Forum Place appraisal that indicated a 1% vacancy rate for class A office space in downtown Harrisburg. The misleading Official Statement and financial projections, together with the vacancy rate information in the appraisal, misled investors as to the expectation of income necessary to repay the Bonds, and misled them to believe that PennDOT might renew its lease because there was no other office space available in downtown Harrisburg.
12. PennDOT's scheduled move from Forum Place to the Keystone building was material to investors because PennDOT was responsible for over 60% of the revenues needed for repayment of the Bonds. PennDOT's departure from Forum Place materially changed the risk to Bondholders that the Bonds would be repaid. One original investor learned in September 1998 of PennDOT's planned move to the Keystone building in 2001 and, upon concluding that such information was material to the risk that the Bonds would be repaid, promptly sold its entire $5.6 million position.
13. While engaged in the foregoing acts, the Authority, Fowler, PFC, D&B and Bradbury each directly or indirectly made use of the mails or the means and instruments of transportation and communication in interstate commerce, or the means and instrumentalities of interstate commerce.
As a result of the conduct described above, the Authority violated Sections 17(a)(2) and 17(a)(3) of the Securities Act, which prohibit fraudulent conduct in the offer and sale of securities.
As a result of the conduct described above, Fowler and PFC caused the Authority's violations of Section 17(a)(2) and 17(a)(3) of the Securities Act, due to acts or omissions Fowler and PFC knew or should have known would contribute to such violations.
As a result of the knowing or reckless conduct described above, Bradbury and D&B willfully violated Section 17(a) of the Securities Act, and Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, which prohibit fraudulent conduct in the offer and sale of securities and in connection with the purchase or sale of securities.
As a result of the conduct described above, D&B willfully violated, and Bradbury willfully aided, abetted and caused D&B's violation of, Section 15B(c)(1) of the Exchange Act by using the mails or interstate commerce to effect a transaction in, or to induce or attempt to induce the purchase or sale of, municipal securities in contravention of a rule of the Municipal Securities Rulemaking Board ("MSRB").
As a result of the conduct described above, Bradbury and D&B willfully violated MSRB Rule G-17 by knowingly, recklessly or negligently failing to deal fairly with all persons and engaging in a deceptive, dishonest or unfair practice in failing to disclose all material facts concerning a transaction which could affect a customer's investment decision.
In view of the allegations made by the Division, the Commission deems it necessary and appropriate and in the public interest that public cease-and-desist and administrative proceedings be instituted to determine:
Whether the allegations set forth in Section III. above concerning PFC, Fowler, D&B and Bradbury are true and, in connection therewith, to afford PFC, Fowler, D&B and Bradbury an opportunity to establish any defenses to such allegations;
Whether, pursuant to Section 8A of the Securities Act, PFC and Fowler should be ordered to cease and desist from committing or causing any violations and any future violations of Section 17(a) of the Securities Act;
Whether, pursuant to Section 8A of the Securities Act and Section 21C of the Exchange Act, D&B should be ordered to cease and desist from committing or causing any violations and any future violations of Section 17(a) of the Securities Act, Sections 10(b) and 15B(c)(1) of the Exchange Act and Rule 10b-5 thereunder, and MSRB Rule G-17;
Whether, pursuant to Section 8A of the Securities Act and Section 21C of the Exchange Act, Bradbury should be ordered to cease and desist from committing or causing any violations and any future violations of Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and MSRB Rule G-17;
Whether, pursuant to Section 8A of the Securities Act and Section 21C of the Exchange Act, Bradbury should be ordered to cease and desist from causing any violations and any future violations of Section 15B(c)(1) of the Exchange Act;
Whether, pursuant to Section 8A of the Securities Act and Section 21C of the Exchange Act, an order requiring disgorgement, including reasonable interest, should be entered against PFC, Fowler, D&B and Bradbury;
What, if any, remedial relief is appropriate and in the public interest against D&B and Bradbury pursuant to Sections 15(b) and 15B of the Exchange Act; and
Whether, pursuant to Section 21B of the Exchange Act, civil penalties should be assessed against D&B and Bradbury.
IT IS HEREBY ORDERED that a public hearing for the purpose of taking evidence on the questions set forth in Section III hereof shall be convened not earlier than thirty days and not later than sixty days from service of this Order at a time and place to be fixed and before an Administrative Law Judge to be designated by further order as provided by Rule 200 of the Commission's Rules of Practice, 17 C.F.R. § 201.200.
IT IS HEREBY FURTHER ORDERED that PFC, Fowler, D&B and Bradbury shall file an answer to the allegations contained in this Order within twenty days after service upon them of this Order, as provided by Rule 220 of the Commission's Rule of Practice, 17 C.F.R. § 201.220. If the respondents fail to file an answer within the time provided or fail to appear at a hearing after being duly notified, they shall be deemed in default and the proceedings may be determined against them upon consideration of this Order, the allegations of which may be deemed to be true, as provided by Rules 155(a), 220(f), 221(f) and 310 of the Commission's Rules of Practice, 17 C.F.R. §§ 201.155(a), 201.220(f), 201.221(f) and 201.310.
IT IS HEREBY FURTHER ORDERED that an Administrative Law Judge to be designated by further Order will issue an initial decision on the allegations contained herein within 300 days from service of this Order as required by Rule 360(a)(2) of the Commission's Rules of Practice, 17 C.F.R. § 201.360.
This Order shall be served upon PFC, Fowler, D&B and Bradbury personally or by certified mail forthwith.
In the absence of an appropriate waiver, no officer or employee of the Commission engaged in the performance of investigative or prosecutorial functions in this or any factually related proceedings will be permitted to participate or advise in the decision upon this matter, except as a witness or counsel in proceedings held pursuant to notice. Since this proceeding is not "rule making" within the meaning of Section 551 of the Administrative Procedure Act, it is not deemed subject to the provisions of Section 553 delaying the effective date of any final Commission action.
By the Commission.
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