By David S. Mercer, Esq. and Jeremy R. Moss, Esq.
Justified Removal
Q: How can a board remove a board member? Our association bylaws are not clear on the process, but isn't it pretty standard? What actions justify a removal? —Virginia Beach, Va.
A: Generally speaking, directors on a board cannot unilaterally vote to remove a fellow director. A director may oftentimes be removed only by the body responsible for that person's election—the membership of the association.
Removal of directors is controlled by the association governing documents, including the articles of incorporation, and state law. If considering a director's removal, your board should consult state condominium or homeowners association statutes and corporate law. Many states, including Virginia, have adopted laws governing the removal of directors from corporate boards. Incorporated associations, therefore, may have additional requirements or procedures to follow.
Sec. 13.1-860 of the Virginia Nonstock Corporation Act, which governs many homeowners associations, provides that the members may remove a director, with or without cause, unless the association articles of incorporation provide only for removal with cause. The act also provides that a director may be removed only at a meeting called for the purpose of removing him (i.e., a special meeting), and that the meeting notice shall state that the purpose (or one of the purposes) of the meeting is removal of the director.
The association governing documents may provide additional methods, some of which may be automatic, for removal of a director. Some governing documents, for example, provide that a member is disqualified from serving on the board if that owner becomes more than 60 days delinquent in the payment of assessments or if that director misses a certain number of consecutive board meetings.
With that said, it is typical for a board to have authority to unilaterally remove an officer from a current position. The former officer will continue to serve as a director, but is relieved from officer duties.
We frequently counsel our clients on the benefit of adopting a code of conduct to govern the behavior of directors, officers and committee members. A code of conduct is useful to establish standards, clarify the duties of leaders and set forth a procedure for enforcement. If adopted before issues arise, a code of conduct will help ensure that community volunteer leaders are treated fairly and held to similar standards.
David S. Mercer is a principal of the law firm MercerTrigiani in Alexandria, Va., a member of CAI's College of Community Association Lawyers (CCAL) and a past president of CAI. Jeremy R. Moss is an associate at MercerTrigiani.
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