Code of Virginia

Code of Virginia
Title 24.2. Elections
11/18/2017

Article 7. Removal of Public Officers from Office.

§ 24.2-230. Applicability of article; certain exceptions.

This article shall apply to all elected or appointed Commonwealth, constitutional, and local officers, except officers for whose removal the Constitution of Virginia specifically provides.

However, an appointed officer shall be removed from office only by the person or authority who appointed him unless he is sentenced for a crime as provided for in § 24.2-231 or is determined to be "mentally incompetent" as provided for in § 24.2-232. This exception shall not apply to an officer who is (i) appointed to fill a vacancy in an elective office or (ii) appointed to an office for a term established by law and the appointing person or authority is not given the unqualified power of removal.

This article shall be applicable to members of local electoral boards and general registrars, but shall not be applicable to assistant registrars who may be removed from office by the general registrar pursuant to § 24.2-112 or to officers of election who may be removed from office by the local electoral board pursuant to § 24.2-109.

1975, cc. 515, 595, §§ 24.1-79.1, 24.1-79.2; 1993, c. 641; 1998, c. 582; 2004, cc. 27, 391.

§ 24.2-231. Forfeiture of office by person sentenced for commission of certain crimes.

Any person holding any public office of honor, profit, or trust in this Commonwealth who is convicted of a felony or any offense for which registration is required as defined in § 9.1-902 and for whom all rights of appeal under Virginia law have expired, shall by such final conviction forfeit his office or post and thereafter may not act therein under his previous election or appointment. A pardon which may be afterwards granted him shall not void the forfeiture.

Code 1950, § 2.1-36; 1966, c. 677; 1975, cc. 515, 595, § 24.1-79.3; 1993, c. 641; 2007, c. 175.

§ 24.2-232. Vacancy occurring when officer determined "mentally incompetent" (incapacitated).

A person who is determined to be incapacitated in a judicial proceeding as provided for in Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2 shall be deemed for purposes of Article II, Section 1 of the Constitution of Virginia and this title to be "mentally incompetent" as that term is used in those provisions. The office of any person who is so determined to be incapacitated, shall become vacant and the vacancy filled in the manner provided by law. Notwithstanding the provisions of Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2, however, any officer shall have a jury trial unless it is waived by him or for him by his counsel of record.

1975, cc. 515, 595, § 24.1-79.4; 1993, c. 641; 1997, c. 921; 1998, c. 582.

§ 24.2-233. Removal of elected and certain appointed officers by courts.

Upon petition, a circuit court may remove from office any elected officer or officer who has been appointed to fill an elective office, residing within the jurisdiction of the court:

1. For neglect of duty, misuse of office, or incompetence in the performance of duties when that neglect of duty, misuse of office, or incompetence in the performance of duties has a material adverse effect upon the conduct of the office;

2. Upon conviction of a misdemeanor pursuant to Article 1 (§ 18.2-247 et seq.) or Article 1.1 (§ 18.2-265.1 et seq.) of Chapter 7 of Title 18.2 and after all rights of appeal have terminated involving the:

a. Manufacture, sale, gift, distribution, or possession with intent to manufacture, sell, give, or distribute a controlled substance or marijuana;

b. Sale, possession with intent to sell, or placing an advertisement for the purpose of selling drug paraphernalia; or

c. Possession of any controlled substance or marijuana and such conviction under subdivision a, b, or c has a material adverse effect upon the conduct of such office;

3. Upon conviction, and after all rights of appeal have terminated, of a misdemeanor involving a "hate crime" as that term is defined in § 52-8.5 when the conviction has a material adverse effect upon the conduct of such office; or

4. Upon conviction, and after all rights of appeal have terminated, of sexual battery in violation of § 18.2-67.4, attempted sexual battery in violation of subsection C of § 18.2-67.5, peeping or spying into dwelling or enclosure in violation of § 18.2-130, consensual sexual intercourse with a child 15 years of age or older in violation of § 18.2-371, or indecent exposure of himself or procuring another to expose himself in violation of § 18.2-387, and such conviction has a material adverse effect upon the conduct of such office.

The petition must be signed by a number of registered voters who reside within the jurisdiction of the officer equal to ten percent of the total number of votes cast at the last election for the office that the officer holds.

Any person removed from office under the provisions of subdivision 2, 3, or 4 may not be subsequently subject to the provisions of this section for the same criminal offense.

1975, cc. 515, 595, § 24.1-79.5; 1989, c. 470; 1993, c. 641; 2002, cc. 588, 623; 2011, cc. 384, 410; 2014, cc. 566, 674, 719.

§ 24.2-234. Removal of officer appointed for a term certain.

Any officer appointed to an office for a term established by law may be removed from office, under the provisions of § 24.2-233, upon a petition filed with the circuit court in whose jurisdiction the officer resides signed by the person or a majority of the members of the authority who appointed him, if the appointing person or authority is not given the unqualified power of removal.

The circuit court also shall proceed pursuant to § 24.2-235 for the removal of a member of a local electoral board or general registrar upon a petition signed by a majority of the members of the State Board of Elections as provided in § 24.2-103.

1975, cc. 515, 595, § 24.1-79.6; 1993, c. 641; 2004, cc. 27, 391.

§ 24.2-235. Procedure.

A petition for the removal of an officer shall state with reasonable accuracy and detail the grounds or reasons for removal and shall be signed by the person or persons making it under penalties of perjury. The circuit court shall not dismiss the petition solely because of an error or omission in the form of the petition relating to its statement of the grounds or reasons for removal if such error or omission is not material in determining whether the statement of the grounds or reasons for removal provides a reasonable basis under § 24.2-233 to consider the removal of the officer.

As soon as the petition is filed with the court, the court shall issue a rule requiring the officer to show cause why he should not be removed from office, the rule alleging in general terms the cause or causes for such removal. The rule shall be returnable in not less than five nor more than ten days and shall be served upon the officer with a copy of the petition. Upon return of the rule duly executed, unless good cause is shown for a continuance or postponement to a later day in the term, the case shall be tried on the day named in the rule and take precedence over all other cases on the docket. If upon trial it is determined that the officer is subject to removal under the provisions of § 24.2-233, he shall be removed from office.

1975, cc. 515, 595, § 24.1-79.7; 1993, c. 641; 2009, cc. 868, 876.

§ 24.2-236. Suspension from office pending hearing and appeal.

In the event of a judicial proceeding under § 24.2-231, 24.2-232, 24.2-233, or 24.2-234, the circuit court may enter an order suspending the officer pending the hearing. Any officer convicted of a felony under the laws of any state or the United States shall be automatically suspended upon such conviction, regardless of any appeals, pleadings, delays, or motions. The court may, in its discretion, continue the suspension until the matter is finally disposed of in the Supreme Court or otherwise. During the suspension the court may appoint some suitable person to act in the officer's place. The officer's compensation shall be withheld and kept in a separate account and paid to him if and when the judicial proceedings result in his favor. Otherwise, it shall be paid back to the county, city, town, or State Treasurer who paid it.

1975, cc. 515, 595, § 24.1-79.8; 1993, c. 641; 2017, cc. 354, 369.

§ 24.2-237. Who to represent Commonwealth; trial by jury; appeal.

The attorney for the Commonwealth shall represent the Commonwealth in any trial under this article. If the proceeding is against the attorney for the Commonwealth, the court shall appoint an attorney to represent the Commonwealth. Any officer proceeded against shall have the right to demand a trial by jury. The Commonwealth and the defendant shall each have the right to apply to the Supreme Court for a writ of error and supersedeas upon the record made in the trial court and the Supreme Court may hear and determine such cases.

1975, cc. 515, 595, § 24.1-79.9; 1993, c. 641.

§ 24.2-238. Costs.

A. If a judicial proceeding under this article is dismissed in favor of the respondent, the court in its discretion may require the state agency or political subdivision which the respondent serves to pay court costs or reasonable attorney fees, or both, for the respondent.

B. No person who signs a petition for the removal of an official pursuant to § 24.2-233 or who circulates such a petition (i) shall be liable for any costs associated with removal proceedings conducted pursuant to the petition, including attorney fees incurred by any other party or court costs, or (ii) shall have sanctions imposed against him pursuant to § 8.01-271.1.

1975, cc. 515, 595, § 24.1-79.10; 1993, c. 641; 2009, cc. 868, 876.

The chapters of the acts of assembly referenced in the historical citation at the end of these sections may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.

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