Home Loan Bank Board, 12 U.S.C.A. § 1725(a), pursuant to Section 407(h) of the Act, 12 U.S.C.A. § 1730(h).
Petitioner has requested that this Court enter an order:
1. Directing the officers, directors and employees of respondent Havertown to desist in aiding, abetting or approving any participation by respondent Hykel in any manner in the affairs of Havertown.
2. Directing respondent Hykel to pay over or return to respondent Havertown any and all money, profits or things of value he may have received by reason of his participation in the affairs of Havertown.
3. Directing that the United States recover the costs of maintaining this action.
A hearing was held on August 16, 1971, at which time it was admitted that the facts were not in dispute. A recapitulation of the principal facts will be beneficial in placing this case in its proper perspective.
On March 5, 1970, George J. Hykel, President and a Director of Havertown, was indicted by the Grand Jury for the Eastern District of Pennsylvania, United States v. George J. Hykel, Criminal No. 70-104, for having acted dishonestly and in breach of his fiduciary duties to Havertown in violation of 18 U.S.C.A. § 371 and 18 U.S.C.A. § 1006. Pursuant to 12 U.S.C.A. § 1730(h), on April 14, 1970, the Corporation issued a Notice of Suspension to Hykel suspending him as President and Director of Havertown pending disposition of the criminal proceedings against him and prohibiting him from "further participation in any manner in the conduct of the affairs of [said] institution."
Hykel challenged his suspension and the constitutionality of Section 407(h). A Three-Judge Court, appointed pursuant to 28 U.S.C.A. §§ 2282 and 2284, dismissed without reaching the merits of Hykel's claim pursuant to 12 U.S.C.A. § 1730(k)(2). Hykel v. Federal Savings and Loan Insurance Corp., 317 F. Supp. 332 (E.D. Pa. 1970).
On February 24, 1971, Hykel was convicted of violating 18 U.S.C.A. § 1006. His post-trial motions have been denied and he has been sentenced by this Court.
Beginning in March, 1971, Hykel has acted as a real estate agent on behalf of Havertown and has been authorized to sell or rent real estate acquired by Havertown through foreclosure. Hykel has received commissions for his services. The Notice of Suspension is still in full force and effect.
The only issue is whether Hykel's activities in acting as a real estate agent on behalf of Havertown are considered "participation in any manner in the conduct of the affairs of the Institution" in violation of Section 407(h). We find that they are.
Section 407(h) of the Act provides in pertinent part:
Whenever any director or officer of an insured institution * * * is charged in any information, indictment, or complaint authorized by a United States Attorney, with the commission of or participation in a felony involving dishonesty or breach of trust, the Corporation may, by written notice served upon such director, officer, or other person, suspend him from office and/or prohibit him from further participation in any manner in the conduct of the affairs of the institution. A copy of such notice shall also be served upon the institution. Such suspension and/or prohibition shall remain in effect until such information, indictment, or complaint is finally disposed of or until terminated by the Corporation. * * *