Removal from office

I was newly voted on the bod by the members of our association at our annual meeting. I have been trying to follow our governing documents and because of that some of the other board members want me off the board.

Our bylaws state "Any director may be removed from office by a three-forths vote of the board of directors serving at the time the vote is taken, or. by two thirds vote of the members in good standing at any meeting called for that purpose."

Our association is a non profit, non stock corporation in the state of Virginia.

Under the Virginia non stock act it states that only the members who voted me in can vote me off.

My question is which takes presidence ?

Hi Sheryl,

First and foremost, thank you for participating in the governing process of your Association.

My only advice if your meeting resistance is to pick your battles. Sometimes, the way to win over fellow board members is to bring the applicable laws and the governing documents with you. This way, when there is a question everyone can look them up right then and there.

The section of the Virginia Nonstock Corporation Act you refer to is VA § 13.1-860. I do not see anything within that section of the statute that defers to the governing documents. Therefore, if there is a conflict the statute would control.

Now, expecting that you cited is complete, there may not be a conflict. However, there may be a misinterpretation of the Bylaws. Per VA § 13.1-860, "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."

I am not an attorney and I do not work within the legal profession. I see no conflict between your governing documents and the law. However, I see lots of opportunity for mis-interpretation. The law places a condition that must be met prior to the Association using procedures for removal outlined in the governing documents. That condition is in bold in the previous paragraph. Therefore, if there were no members, the Board could remove you. However, since there is members, only the members may remove you.

The next time it comes up, you may want to suggest that the Board seek a legal opinion on the issue. Especially since the Virginia Administrative Code now provides penalties to Associations who violate Virginia laws and regulations simply by filing a complaint with the Common Interest Community Ombudsman.

I offer this suggestion because, honestly, the only way to address the issue if your Board chooses to try and use that section of your governing documents is through third parties (the VA Common Interest Community Board, the courts or your membership). Currently the CIC Board is the easiest for members. The hardest is the courts and the membership typically has longer lasting affects. However, the best option is for the Board to fully comprehend and understand their governing documents and how applicable laws affect those documents.

Another good resource for VA Associations is the Fairfax County Community Association Manual. It doesn't address this issue but it gives a good, plain text, explanation of how Associations should operate under VA laws.

Hope this helps,

Tim

Sheryl

Tim is very knowledgeable especially about VA stuff.

Generally a BOD Member elected by a vote of the owners can only be removed by a vote of the owners. I believe you were elected by such, were you not?

Generally a BOD Member appointed/elected by the BOD to fill a vacancy on the BOD can be removed by a vote of the BOD.

Some Bylaws have BOD Member restrictions/removal based on late dues, fines, legal action against the association, missing so many consecutive missed meetings without notice, etc. These can vary widely but should be in your Bylaws.

Hope this helps.

Your bylaws should state how board officers are selected. Generally the Board votes for the officers that are specified in your bylaws. I've never hear of a president giving directors assignments! And she, too, had to have been elected to the office of prez by her fellow directors. This usually happens right after or soon after directors have been elected.

Who takes minutes at your Board meetings? Whoever it is, s/he brings the draft to the next meeting and the Board votes to accept them as written or has corrections and then accepts them as amended.

Tim'll know about VA, but in CA open meeting agendas must be posted in a common area place 4 days in advance of meetings or mailed to HOA members. This also might be in your bylaws.

Do you have, then, a board of nine? That's unusually large. Do your bylaws state a number? What size is your HOA? Do you have a property mgr. who can help straighten things out.

Sounds like quiet a mess!

If a quorum was present and you were making decisions (assigning officer positions is making decisions) it was a meeting.


Minutes should be reviewed and, if needed, amended before being approved by the Board.


This shouldn't happen. However, it does happen with some Boards.
The best way to change this is from within. Changes might not happen right away, it could take years, but changes can happen.


It sounds like you might need to talk to other board members one on one and gather support. You may want to use the approach that you want to do things properly and are unsure why things are done the way they are. Basically you are asking for help in understanding but your questions are used to sway the person to your side or at least open their eyes to how things should be done.


There are notice requirements for VA as well. Having the requirement and meeting the requirement are two different issues. Perhaps you can volunteer to assist or assume the Secretary duties. This will allow you to slowly bring things you can (like minutes, notices, etc.) into compliance.

From what you describe it sounds like you need to get others on the Board that want to do things correctly vs. getting things done (both can be accomplished at the same time). I would recommend encouraging others to run with you at the next election. If proxies are used, gather as many as you can so you can have a larger say in the voting process.

Hope this helps,

Tim