Recall Petition in VA

Tim - I was looking through the posts for information on what's required for a recall petition (purpose to recall two board members) in the Commonwealth of Virginia.
Didn't see anything in our bylaws. Is this dictated by Sterling Davis rules? Any ideas? Any sample petitions as resources?

I found this in old posts, but what is "cummulative voting".

§ 13.1-860. Removal of directors.

A. The members may remove one or more directors with or without cause, unless the articles of incorporation provide that directors may be removed only with cause.

B. If a director is elected by a voting group of members, only the members of that voting group may participate in the vote to remove him.

C. If cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect him under cumulative voting is voted against his removal. If cumulative voting is not authorized, unless the articles of incorporation require a greater vote, a director may be removed if the number of votes cast to remove him constitutes a majority of the votes entitled to be cast at an election of directors of the voting group or voting groups by which the director was elected.

D. If a corporation has no members or no members with voting rights, a director may be removed pursuant to procedures set forth in the articles of incorporation or bylaws, and if none are provided, a director may be removed by such vote as would suffice for his election.

E. A director may be removed only at a meeting called for the purpose of removing him. The meeting notice shall state that the purpose or one of the purposes of the meeting is removal of the director.

F. Upon the removal of a director, the corporation may file an amended annual report with the Commission indicating the removal of the director and the successor in office, if any.

(Code 1950, § 13.1-221; 1956, c. 428; 1985, c. 522; 1987, c. 177; 1991, c. 124; 2007, c. 925.)

Mike,

Here is a more complete procedure for a recall I posted in a different thread:

A typical recall procedure would be:

1) Gather neighbors and form a recall committee

2) Request membership list from the Association and a mailing list of all Board members.

3) Solicit signatures from members only (one signature per lot) on a petition to hold a special meeting for the purpose of recalling the Board of Directors and electing a new one.

3a) While soliciting signatures, solicit for people to serve on the Board

4) Send the petition via certified mail to:

a) Registered Agent (if Association is incorporated) (original)
b) Management Company (send original here if there is no registered agent)
c) All Board members (copies)
d) keep a copy for yourself

In the polite cover letter sent with the petition cite any sections of the governing documents and State law that applies to calling special meetings and recalling the board (shows you've done your homework).

5) Wait an appropriate amount of time to see if the Board announces the meeting.

If Board does nothing send a second certified letter, with copies as outlined in step 3, stating that unless a meeting is held within x days (allowing time for notice requirements) and a notice of said meeting is sent within x days (say 10 days) that the recall committee will conduct the meeting.

5a) If the Board does announce the meeting, contact all members and solicit proxies if they are not attending the meeting (providing you can vote by proxy).

IF the committee has to hold the meeting:

6) Locate a meeting place

7) Set a date and time (be sure to comply with any meeting notice requirements)

8) Mail initial notice of meeting to all members

9) Solicit proxies if proxy voting is allowed

10) Mail reminder about meeting

11) Hold Meeting

AT the MEETING (no matter who calls it):

Confirm Quorum is present
Show proof of notice
Item 1 - recall of Board
discussion
Pass out ballots
Vote
Collect ballots
count
Announce result
Item 2 - election of new Board (if recall is successful)
Introduce nominees
Ask for nominations (if allowed from floor)
discussion
Pass out ballots
Vote
Collect ballots
count
Announce result
Send copies of minutes, sign-in sheet, vote count and results to registered agent, management company and all previous (if recall was successful) board members via certified mail. Set date for turn over of all records.

The reason you send everything via certified mail is to have a paper trail in case it turns into a legal battle.

Tim

This is best explained by example. Suppose you have 100 units and you have 3 open seats. First, each unit would get 3 votes, one for each seat. The owner could cast one vote for each of three candidates, two of his votes for one candidate and one vote for another, or he could cast all three of his votes for a single candidate. The three candidates with the highest number of votes win.

Cumulative voting works best in for-profit corporations as it allows minority stockholders can elect at least one person to the board of directors.

Mike,

As you posted, VA law specifies "If cumulative voting is not authorized, unless the articles of incorporation require a greater vote, a director may be removed if the number of votes cast to remove him constitutes a majority of the votes entitled to be cast at an election of directors of the voting group or voting groups by which the director was elected. "

Please note, the number of votes entitled to be cast = the total number of lots eligible to cast a vote (not the number of lots actually casting a vote).

Example:

100 lots, 1 vote per lot, all lots have voting privileges.

51 votes = majority needed to recall

100 lots, 1 vote per lot, 99 lots have voting privileges.

50 votes = majority needed to recall

To clarify:

IF using whole numbers for the votes, the term "Majority" means the next highest whole number above 50%. If an association has 99 voting lots, 50% is 49.5 which, when rounded up, produces a majority of 50. The 50% + 1 formula would produce an erroneous result, i.e., 50% of 99 is 49.5 +1 = 50.5 which, when rounded, produces 52 instead of the proper result of 50.

Re: cumulative voting, Mike. Note that the law (?) you cited said that if cumulative voting is authorized. That would probably be found in your bylaws. We're revising our bylaws and are dumping cumulative voting.

But I'm with Kelly-- get yourself and likeminded owners together. Set goals for your HOA. Craft a campaign platform, get as many to seek election to the board as there are vacancies and get yourselves elected. That's what we did here and it worked! We organized ourselves about 5 months before an election, studied our own docs and the relevant state laws and were very well prepared.

Kelly thanks for your insights. There are so many folks that want this board member out that I won't have to do much. It's being driven by other community members now.