Legislation to Authorize Recalls by Referendum Passes Senate; Fate Uncertain in House

February 15, 2022

SB 495 (McClellan), which would significantly revise the current process for removal of public officers from office, has passed the Senate.  A companion measure, HB 972 (Simon), has not been heard in the House and is unlikely to be taken up before crossover.

Under current law, office is forfeited for a felony conviction or offense requiring registration on the Sex Offender and Crimes Against Minors Registry, and an office is deemed vacant when an officeholder is determined to be incapacitated by a judicial proceeding.  In addition, a circuit court may remove any elected officer or officer who has been appointed to fill an elective office, a process that is triggered by receipt of a petition that must be signed by a number of registered voters representing 10 percent of the total number of votes cast at the last election for the office.  Grounds for removal include neglect of duty, misuse of office, incompetence in the performance of duties when that neglect, misuse of office, incompetence has a material adverse effect; conviction of a misdemeanor involving certain drug offenses; conviction of a hate crime when the conviction has a material adverse effect upon the conduct of the office; and conviction of certain sex crimes.  An appointed officer may be removed upon a petition to the circuit court signed by the person or a majority of the members who appointed the officer.  When the petition for removal is filed with the court, the court must issue a rule requiring the officer to show cause as to why he should not be removed.  The case is tried (the officer may demand a trial by jury), with the Commonwealth’s attorney representing the Commonwealth.  If the officer is determined to be subject to removal, he or she is removed from office.  The court’s decision is appealable to the Court of Appeals.

Under SB 495, appointed officers would be subject to the same process for removal as in current Code.  In a departure from current practice, SB 495 would provide for a recall by referendum for elected officials, rather than via a judicial process.  For elected officers and officers appointed to fill an elective office, a vacancy occurs when a person is determined to be incapacitated by a judicial proceeding; an officer is also subject to recall upon a petition signed by a number of qualified voters equal to 30 percent of the total number of votes cast at the last election for the office.  The grounds for recall would be conviction of a crime against a locality served by the office that occurred during the official’s term of office, or conviction of a felony or an offense requiring registration as a sex offender.

The bill outlines the following process for a recall:

  • In order to begin the recall referendum process, a person must apply to the general registrar to circulate a recall petition.
  • To file an application, at least 100 official sponsors, or 10 percent of the number of individuals who voted in the last election for the office, are required, and a recall petition application cannot be submitted during the first 180 days or the last 180 days of the officer’s term.
  • The registrar must notify the public officer and determine the legal sufficiency of the application and veracity of the grounds for recall. Upon certifying the application, the registrar shall issue official recall petition forms and notify the public officer.
  • A completed recall petition (meeting the 30 percent threshold discussed above) is to be filed with the general registrar.
  • Upon determination of the sufficiency of the petition, the registrar must notify the petition chairman and public officer and file certification with the circuit court.
  • Within five days of certification of the sufficiency of the petition for recall, the court must order election officials to conduct a recall referendum. The referendum must be held not less than 90 days not more than 150 days from the date of the order.
  • If the majority of votes are for recall and removal, the office becomes vacant. If a majority votes against recall and removal, the officer would continue in office and is not subject to another referendum for recall on the same grounds.

VACo Contact:  Katie Boyle

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