Muni advisor to Harvey, Illinois library district charged $86,000 by SEC

Brandon Comer and his firm Comer Capital Group, the Mississippi-based municipal advisor to the library district of the City of Harvey, Illinois, have been fined a total of $86,000 in a final judgment reached in the Northern District of Illinois after years of litigation.

Without admitting or denying the allegations of the Securities and Exchange Commission's complaint, Comer Capital was ordered to pay $25,000 in disgorgement, $11,000 in prejudgment interest and a $30,000 civil penalty. Comer was ordered to pay a $20,000 civil penalty but he did not receive the permanent injunction the SEC initially sought in its complaint.

The SEC brought charges against Comer and his firm in 2019, and the resulting litigation over the previous four years was high-stakes for Comer. He was only 37 at the time and such cases can result in industry bars.

But Comer's defense long maintained that he was blameless in providing advice to the library district of a cash-strapped suburb that had long-running financial troubles before he came on board as a municipal advisor. The Harvey Public Library District is also a first-time issuer and separate from the City of Harvey, Illinois, but has absorbed some of the city's perilous reputation.

"It's incredible that Brandon Comer was able to get this bond deal done and that Harvey received the beautiful library that it received," said James Kopecky, head of Kopecky Schumacher Rosenberg's regulatory services practice and defense counsel to Brandon Comer.

In its complaint, the SEC alleged that Comer and his firm failed to protect the interests of their client, the Harvey Public Library District in a $6 million insured offering and that they did not provide advice to the Library District on the qualifications of the underwriter. Upon learning that the underwriter was having difficulty finding investors to buy the bonds, the SEC found, Comer did not consider or recommend engaging another broker-dealer to underwrite the bonds. The offering priced with a 7.1% coupon to yield 5.05%, according to a final scale posed to the Municipal Securities Rulemaking Board's EMMA disclosure website. The bonds were sold with a BBB underlying rating from S&P Global Ratings, enhanced to AA with Assured Guaranty insurance.

The commission also alleged that Comer and his firm did not provide the Library District with the information and advice needed to determine whether the price of the bonds was fair and reasonable, causing the District to pay more than $500,000 in additional interest over the life of the bonds.

IFC Securities, underwriter to the Harvey Public Library District, was also charged in a now settled administrative proceeding, finding that "IFS did not act with reasonable care in underwriting the bonds and, when it had difficulty finding investors for the bonds, sold all of the bonds to another broker-dealer at a price which was not fair and reasonable to the District," the SEC said. Without admitting or denying the findings, IFS agreed to a censure, was ordered to engage an independent compliance consultant and charged a civil penalty of $50,000.

Kopecky maintains that Comer was blameless in the deal, which appeared to suffer from market contamination due to its name association with the city in which the library district is located. Harvey, Illinois has been in financial turmoil for decades and has been the subject to multiple SEC actions over its handling of finances and has defaulted on millions of dollars of bonds.

A 2014 enforcement action against Harvey took the unusual step of seeking an emergency court order to halt an upcoming bond sale because the SEC alleged the city and its comptroller were diverting bond payments for personal gain and to meet city payroll needs.

The SEC also alleged a conflict of interest created by IFS recommending Comer for the job, and in Comer subsequently asking IFS to work with the district to increase his fee for the transaction. Comer initially agreed to a lower than usual payment of $15,000 for his services, with IFS negotiating an increase to $20,000. Comer then personally negotiated another fee increase, ending his compensation at $40,000.

In Comer's defense, Kopecky told the court that Comer had no control over the district, which chose IFS as an underwriter before Comer was hired and which had its own counsel in addition to Comer as MA. He went on to further say that Comer's fee increase was justified due to an increase in the scope of his duties beyond the original agreement, and that there's no requirement that the best price possible be obtained for any issuance.

The commission countered by arguing that the fact that Comer performed some, but not all of the functions they promised or otherwise owed the district is no defense and asserted Comer's claims as "meaningless."

The court found that the defendants' insistence that the record reflects no triable disputes ignored the report of the plaintiff's expert, Richard Kolman, a longtime muni banker at multiple Wall Street firms, who opined that Comer and his firm created a conflict of interest by asking IFS to help renegotiate their municipal advisory fee.

Comer's expert Albert Grace noted he has "differing views on a number of statements in the Kolman report," and that he "did not see a conflict as stated in the Kolman Report but rather the natural outgrowth of the delivery of financial services to municipal issuers."

Brandon Comer and Comer Capital Group did not respond directly to requests for comment for this story.