NO SUPER-MAJORITIES
FOR REMOVAL OF DIRECTORS

The voting requirements for removal of directors is set by law and cannot be raised to a super-majority in the bylaws.

The Corporations Code specifically overrides any conflicting bylaw provisions. As provided for in Corp. Code §7222(d), "Except as provided for in this section . . . a director may not be removed prior to the expiration of the director's term of office." If you follow the links in Sections 5033 and 5034, they state that the approval requirements for removing a director cannot be increased.

For example, Section 5034 defines "approved by the members" as the affirmative vote of a majority of the votes represented and voting at a duly held meeting at which a quorum is present. This same section allows bylaws to set a higher voting threshold EXCEPT for the removal of directors (see Corp. Code §7151(e)). This is reinforced by Corp. Code §7151(c)(2) which states that an association's bylaws may not contain any provision that conflicts with the law.

Legislative Notes. The legislative notes regarding the removal of directors state that "This subdivision specifies the exclusive procedure for removal of directors without cause" . . . because governing documents that require a "super-majority" improperly limit the rights of shareholders to change the composition of the board between annual meetings.

Updated by ADAMS KESSLER 5/7/2008