Virginia. - Director Recall Questions

Our HOA is a nonstock corporation in Virginia. A special meeting has been requested by members to recall a board member in accordance with our bylaws and the Virginia Nonstock Corporation Act. I have some questions that I was hoping someone might be able to help me with.

First, I understand that according to the Virginia Nonstock Corporation Act, “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.” In our case, that’s 33 lots in the HOA, or 17 votes to recall. My question here is whether or not a secret ballot is required. Our declaration and bylaws are silent on this and I can’t find any reference to secret ballots in the Virginia Nonstock Corporation Act.

Second, the Virginia Property Owners’ Protection Act states “voting…may be accomplished by electronic means, provided that a record is created as evidence of such vote…”. I’m interpreting this to mean that electronic voting is not mandatory and it’s our decision whether or not to allow electronic voting. Is my interpretation correct?

Third, it also states “If the vote, consent, or approval is required to be obtained by secret ballot, the electronic means shall protect the identity of the voter. If the electronic means cannot protect the identity of the voter, another means of voting shall be used.” It appears that we could specify that the recall ballot must be cast in person at the meeting or by proxy, since I’m not sure how we could protect the voter’s identity in the case of secret ballots.

Lastly, our bylaws state the board, by majority vote, can remove a director for cause. The Virginia Nonstock Corporation Act states “ A board of directors may remove any officer at any time with or without cause…”. Since all our directors are also officers, does this mean a director can be removed by the board with a majority vote or must we have a membership vote? Does the state law supersede our bylaws here?

Any help would be greatly appreciated here. Thanks.

I’m the President.

Our bylaws state “A Director may be removed when sufficient cause exists for such removal. The Board of Directors may entertain charges against any Director. A director may be represented by counsel upon any removal hearing. The Board of Directors shall adopt such rules as it may in its discretion consider necessary for the best interest of the organization for this hearing.” My concern is that this conflicts with the Virginia Nonstock Corporation Act and it was my understanding that state law supersedes the bylaws.

Our bylaws don’t specify what constitutes “cause” for removal of a director.

Our bylaws allow the use of proxies and mail-in ballots, as well as voting by ballot at the meeting.

Chuck, I think you should have broken this up into four different threads. These questions are complicated, especially when the readers here do not have your HOA's bylaws in front of them. Also few readers here are willing to look up the statutes. Please try to answer all questions put to you. This will help readers help you.

Was the director, that some of you want removed, elected by the owners? Or per chance was this director appointed at some time by the board, due to there being a vacancy?

The Virginia Nonstock Corporation Act § 13.1-860 states:

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.

This conflicts with the bylaw you later quoted. In a conflict between statutes and bylaws, the statute controls.

If the director that some of you want to remove was elected by the owners, then only the owners have the lawful power to remove this director.

If perhaps the director was appointed, then the board has the lawful power to remove this director.

One other thing: What you stated above (as quoted in the post herein) speaks to officers. Officers and directors are two different roles. Often one person is both a director and officer. A person who is both an officer and director can resign their officer's position and still be a director.

If you do not understand any of the above, please ask a question that narrows down for readers what it is that you do not understand.