Sam Kessler, President, FB Group Admin
429 Miller Dr., Dawsonville GA 30534
Tracey Moseley, Vice President, FB Group Admin
6 Makers Way, Dawsonville GA 30534
Tim Hayes, Treasurer, FB Group Admin
15 Rolling Rock Ct., Dawsonville GA 30534
Ryan McDuffie, Secretary, FB Group Admin
386 Miller Dr., Dawsonville GA 30534
Cyndi Eversole, FB Group Admin
— Makers Way, Dawsonville GA 30534
Linda Rowland, FB Group Moderator
— Makers Way, Dawsonville GA 30534
Esther Cotto Kessler, FB Group Moderator
— Miller Dr., Dawsonville GA 30534
BY CERTIFIED MAIL, REGULAR MAIL, AND EMAIL
Monday, July 18, 2022
To the board members (“HoA Board”), officers, appointees, and designees of the Crawford Falls Homeowners Association, Inc. (“the HoA”), and other associates named herein:
The purpose of this notice is:
- to bring to your attention certain violations of the HoA’s covenants, by-laws, and other rules both expressed and implied, by the individuals named above; those violations having caused a significant negative impact on the rights of Robert (Bob) and Sherry Griggs, property owners and Members in good standing of the HoA;
- to demand immediate abatement of the violations described herein and immediate restoration of our Member rights, and other remedies;
- to demand certain documents, policies, guidelines, and other records;
- and for other purposes.
This letter is presented under our rights and authority as Members in good standing of the Crawford Falls Homeowners Association. Our Member rights are defined by the HoA declaration and by-laws, as well as by general property law and the Georgia Nonprofit Corporation Code governing non-profit corporations and the conduct of their officers and appointees. Our right to seek redress includes the right, as defined by OCGA § 44-3-231, to bring a tort action for negligence, willful misconduct, or other failure to fulfill a fiduciary duty by any agent or employee of the association.
The HoA Board has a fiduciary duty to the association as a whole and to its Members (1) individually; meaning that the HoA Board is required by the covenants, general property law, and corporate law to always act in the best interest of the HoA and its Members, without malice. In general, a board’s exercise of its powers must be “procedurally fair and reasonable,” and its decisions must be made in “good faith … reasonable and not arbitrary and capricious.” (2)
Under corporate law, boards of directors and officers have a statutory duty to act in good faith, in the organization’s best interests, and exercise ordinary prudence in carrying out their powers. (3)
And from our own Declaration: “The Association shall have no power or duty to do or perform any act or thing other than those acts and things that will promote in some way the common good and general welfare of the people of the Development.” (4)
The Board must do so not only through its own decisions and policies, but the HoA Board is also responsible for the actions of its appointees and designees.
The HoA Board of Directors exceeded its authority and failed to act in the best interest of all Members as enumerated below:
I. On July 4, 2022, the HoA Board and/or individuals acting under the Board’s authority and direction, blocked the Facebook accounts of Bob Griggs and Sherry Griggs from accessing the HoA’s private Facebook group. The block was imposed in an arbitrary and capricious manner, without advance notice to us, and without citing the HoA covenant, by-law, group code of conduct, or Board resolution that was violated.
The Facebook group is the HoA’s primary method for communicating with Members regarding HoA business such as meetings including annual meetings; meeting minutes; policies; information regarding annual assessments; actual votes on issues of interest to Members; and other topics. As such, it is an asset and record of the Association to which we and all Members in good standing must be given continuous, unrestricted access.
II. On July 4, 2022, the HoA board and/or individuals acting under the Board’s authority and direction, allowed at least one Member to defame and disparage Sherry in the HoA Facebook group. No action was taken against Michael Jones II and he remains an unrestricted user of the Facebook group. Specifically:
Michael Jones II wrote, “… you’re white trash and mommy never beat that ass.”
Michael Jones II wrote, “… You are 1000% white trash…”
Michael Jones II wrote, “… Sherry one last thing GO FUCK YOURSELF”
III. On July 4, 2022, the HoA Board and/or individuals acting under the Board’s authority and direction, authorized or allowed Brooks Lamb, a Member with no known official authority, to threaten to restrict Members Bob and Sherry Griggs’ access to the assets of the HoA.
Specifically, Lamb wrote:
“(to Sherry Griggs) is all I hear is a bunch of excuses for your family and the way ya’ll [sic] treated our community pool. NOT surprised at all the way you and your husband were at your 1st hoa meeting!
“Get it together and be respectful! If not you will have someone say something, we clearly don’t put up with lack of respect!
“If you can’t play nice with others we will take away your privileges to our pool.” [Emphasis added.]
IV. The HoA Board has exhibited a pattern and practice, both themselves and through individuals acting under the Board’s authority and direction, of allowing and encouraging HoA Members to defame, attack, threaten, and disparage other HoA Members or violate Members’ privacy. Publicly shaming Members and their guests is an accepted and recommended practice.
- In June 2022, President Sam Kessler encouraged a Member to take photographs of juveniles for the purpose of publicly shaming the juveniles’ Member parents.
- Members are regularly allowed or encouraged by the HoA Board and their appointees to publicly shame other Members.
V. HoA Board President Sam Kessler regularly attacks, threatens, defames, and/or disparages other HoA Members. Further, he has threatened to or actually violated Members’ privacy and has encouraged others to do the same.
- In a now-deleted post from 2021, Kessler objected to a Member placing trash in a dumpster at the pool by posting a picture of the Member’s home address from a mailing label on the trash.
- On May 26, 2021, Kessler criticized Members who did not help renovate the playground: “I’m 100% disabled. Feel free to join me. No excuse if you are just sitting at home.” [Emphasis added]
- Regarding trash left by children on the basketball courts, Kessler wrote on 09/18/2019, “If I see it happen while I am here, I will call them out by address on this site.”
- On or about June 18, 2022, Kessler responded to a private complaint from a neighbor over parking by posting the Member’s letter, name, and address online. In a subsequent post, the President called the Member “spiteful.”
The HoA President’s post caused or encouraged other Members including Brooks Lamb, Judith Johnson, Alexandria Lamb, Sandy Andreasen Anderson, Casey Bell, and Erin Callanan to disparage and ridicule the neighbor. Brooks Lamb wrote, “He’s [the neighbor] been ridiculous since the day he moved in! Move along please sir.” Lamb also wrote, “I’m bringing the jet ski and boat trailers to park there later for 48 hours.” Casey Bell wrote, in part, “I’ll swing by later and park my truck infront [sic] of your house and walk home.”
At the time of these posts, Kessler was an Administrator of the FB group with the ability and authority to remove the offensive communications. The HoA President did not reject or disavow the subsequent posts and the message thread remains published to today.
VI. The HoA Board, specifically, President Sam Kessler, has demonstrated a specific and particular animosity toward me and Sherry. This focused animosity has been expressed publicly to all Members in the HoA Facebook group, and most likely privately to Board members and other Members as well. Kessler’s bias against me has obviously promoted a negative opinion among the Members, as evidenced by the online attacks we have experienced from Members who have never actually met us.
When I thanked a Member in the Facebook group for information regarding an $8,000 expenditure, then expressed an opinion regarding the HoA Board’s inartful handling of the issue, President Sam Kessler responded,
“…it may just be me. But you come across as an ass each time you have spoken. All you do is gripe and complain and offer little advice ever. You sir are inept. I don’t care if you don’t like my statement since a [sic] despise your statement. Please research Tact since you clearly lack it. Feel free to address me further if you would like to also. You attempted to be nothing but a bully in each time you have spoken.”
Demand for Documents
The Board of Directors should consider this a written request for records according to the Crawford Falls Homeowners Association By-Laws, Article III, 3.3, para. A. The HoA Board may provide requested records in a digital format where appropriate, for which there will be no cost. I will be allowed to copy physical documents, according to Article VII of the By-Laws, using my own methods and resources and at no cost. Where the HoA Board must provide the copy of the physical document, the reasonable cost to do so will be provided to me in advance before the copy is made.
The HoA Board is required to provide the requested records or acknowledge that the requested record does not exist.
- The covenant, by-law, rule, Board resolution, or code of conduct that was in effect on July 4, 2022 on which the HoA Board or its designee relied to justify the blocking or removal of my and Sherry’s access to the Crawford Falls Neighborhood Facebook group;
- The minutes of the meeting at which the HoA Board considered a motion and approved a resolution to block my and Sherry’s access to the Crawford Falls Neighborhood Facebook group;
- The names and addresses of the witnesses who testified before the HoA Board or provided other evidence upon which the Board relied to approve the resolution to block my and Sherry’s access to the Crawford Falls Neighborhood Facebook group;
- Any video, audio, or other evidence that has been presented to the HoA Board on any date and upon which the Board relied to approve the resolution to block my and Sherry’s access to the Crawford Falls Neighborhood Facebook group;
- The name of the HoA Board member, group moderator or admin, or other individual who authorized the removal of our access;
- The name of the HoA Board member, group moderator or admin, or other individual who removed our access;
- The name of the HoA Board member, group moderator or admin, or other individual who authorized the deletion of the group thread started by Michael Jones II on July 3, 2022 regarding an incident at the community pool on the same date;
- The name of the HoA Board member, group moderator or admin, or other individual who deleted the group thread started by Michael Jones II on July 3, 2022 regarding an incident at the community pool;
- The “code of conduct” or other guidelines for participation in the Crawford Falls Neighborhood Facebook group that existed on July 4, 2022;
- The covenant, by-law, rule, Board resolution, or other record that was in effect on July 3, 2022 that limits the number of guests that a Member may bring to the community pool on any single occasion;
- The Board resolution or other record that documents the appointment of Brooks Lamb to any position of authority or authorizes Brooks Lamb to set policy or speak on behalf of the HoA Board;
- The minutes and all other records, documents, draft resolutions or by-laws, audio or video recordings created during or as a result of the Board meeting announced by President Sam Kessler on July 4, 2022; the purpose of the meeting being to “discuss the pool issue… in preparation for a community meeting in August.”
Sherry and I seek the following remedies. We recognize that the following, even if fulfilled in total, may reduce but will not eliminate the damage that has been done by the HoA Board to our enjoyment of community assets and our reputation among HoA Members. While we seek to resolve these issues in a manner that minimizes the negative impact on the overwhelming majority of Members who did not cause the damage, we reserve the right to exercise any and all means available to us to protect our rights and reputation.
- Immediate Restoration of Access to the HoA Facebook Group
For as long as the Crawford Falls Neighborhood Facebook group is a method for communicating with Members regarding any HoA business, the group is an asset and record to which all Members have unlimited access under the Association’s covenants and by-laws. Access by any Member including Sherry and me may not be restricted in any manner.
Further, the decision and action to block our access to the Facebook group, an asset and record of the HoA, was made according to no covenant, by-law, or Board resolution and was therefore unfair and unreasonable; made in bad faith; arbitrary and capricious.
Our access to the HoA Facebook group must be restored within 24 hours of receipt of this complaint by any group Admin or Moderator.
- Immediate Resignation of President Sam Kessler
As HoA Board President and CEO of the corporation, Kessler is responsible for ensuring that the acts of the HoA Board or individual officers are in accordance with all applicable declarations, covenants, by-laws, and rules. Kessler is also responsible for the lack of any by-laws, policies, or rules that would have governed the violations described herein. Kessler had full authority to prevent the described violations from occurring and full responsibility for the violations that did occur. Further, Kessler has publicly stated an affirmative desire and intent to violate Members’ rights under the HoA covenants and by-laws, as well as Members’ rights to privacy and the full enjoyment of their property and the assets of the HoA, in the future.
Finally, Kessler has actually violated Members’ rights under the HoA covenants and by-laws, as well as Members’ rights to privacy and the full enjoyment of their property and the assets of the HoA.
By his actions, Kessler has not only exceeded his authority but failed to act in the best interest of all Members to promote […] the common good and general welfare of the people of the Development.”
Not only have Kessler’s actions violated Members’ rights but his conduct on behalf of the Association has exposed the Association to legal action. Under the HoA declarations, any Member may file suit to defend their rights in a court of law. Further, under state and federal law Kessler’s actions and threats may be considered harassment, intimidation, cyber-bullying, and/or cyber-stalking. Any Member or other person harassed or bullied by Kessler may bring suit against the Association to seek damages.
As an alternative to immediate resignation, we will accept a written apology from President Sam Kessler, both personally and on behalf of the HoA Board, published in perpetuity in the Crawford Falls Neighborhood Facebook Group; the content of which apology will first be approved by us. We will accept the apology in lieu of resignation only if and when the HoA Board fully satisfies all other remedies, demands for documents, and other relief sought herein.
- A New Online Presence and Platform for Conducting HoA Business
A Facebook Group is a grossly inefficient, inappropriate, and easily abused platform for establishing an online presence for the Association and for conducting official HoA business. Further, its use by the HoA Board as the primary means of communicating with Members is likely not authorized by the Association’s Declaration or by-laws. The HoA Board will establish a committee of knowledgeable and experienced Members to investigate alternatives to the current platform and make a recommendation to the Board. The HoA Board will discontinue the Facebook group as soon as the new platform is active.
- A New Supervisory Committee and Moderation Team
Until an alternative online platform is approved and developed, the Crawford Falls Neighborhood Facebook Group will be supervised by the committee described above. The committee may moderate the group or appoint Members to moderate. The committee will not be required to retain any current Admin or Moderator. No currently-serving HoA Board Member nor family member of a Board Member may serve as a Moderator. No HoA Board Member nor family member will have administrative permissions in the group.
- Adopt a Facebook Group “Code of Conduct”
For as long as it continues to exist, the Crawford Falls Neighborhood Facebook Group will operate under a “Code of Conduct.” The guidelines will be developed by the committee described above with input from Members. At a minimum, the group rules will require participants to be kind and courteous in all communications. Defaming, disparaging, or shaming Members or their family, by name or inference, should not be tolerated.
Notice to preserve evidence.
To all persons named in this complaint and to any Member or other person who owns, manages, or controls certain documents, communications, or other information, consider this my second notice to you that all such information related to this dispute may be relevant to future litigation. I consider the records you own or control to be valuable and irreplaceable sources of discoverable information in this matter. As HoA Board members, officers, their designees and appointees, you have a duty to preserve this information. Failure to take reasonable steps to preserve documents, and published and unpublished communications including digital writings, can result in sanctions at the court’s discretion. The documents and communications you are required to preserve include, but may not be limited to:
- posts in the Crawford Falls Neighborhood Facebook group;
- direct messages or other relevant private communications with any person;
- Emails, letters, and texts;
- Documents created by the HoA as required by the Declaration and/or by-laws;
- Other as yet unnamed documents, writings, and records that might reasonably have relevance or value in this dispute.
You received first notice to preserve evidence on the afternoon of July 4, 2022 in the Crawford Falls Neighborhood Facebook Group. That notice and other invaluable communications relevant to this dispute were deleted soon after they were posted.
Notice of intent to seek immediate relief.
The blocking of our access to the Facebook group is a continuing infringement on our Member rights. Further, the HoA Board through President Sam Kessler has announced that it plans to take additional immediate action to further restrict our rights and the rights of other Members. Our ability to participate in the rule-making processes of the Association is limited by the arbitrary and capricious actions of the HoA Board. If required to protect our rights as Members, we will seek a temporary restraining order or other injunctive relief in the Superior Court of Lumpkin County.
(1) “Members” are the property owners in good standing, as defined by the HoA covenants.
(2) Saunders v. Thorn Woode Partnership, L.P. 265 Ga. 703, 462 S.E.2d 135 (Ga., 1995).
(3) OCGA § 14-3-830.
(4) DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR CRAWFORD FALLS SUBDIVISION, Article II, 2.01 “Purposes, Power and Duties,” as published in the Crawford Falls Neighborhood Facebook Group.
arbitrary /ˈärbəˌtrerē/ adjective: based on random choice or personal whim, rather than any reason or system. (of power or a ruling body) unrestrained and autocratic in the use of authority.
capricious /kəˈpriSHəs,kəˈprēSHəs/ adjective: given to sudden and unaccountable changes of mood or behavior.
defame /dəˈfām/ verb: damage the good reputation of (someone); slander or libel.
fiduciary /fəˈd(y)o͞oSHēˌerē, fəˈd(y)o͞oSH(ə)rē/ adjective: involving trust, especially with regard to the relationship between a trustee and a beneficiary. In general terms, the fiduciary must always act in the best interest of the beneficiary. Regarding an HoA, the officer or appointee must always act in the best interest of the association and its members.
member: any member of the Association. Every Owner shall automatically be a member of the Association. Membership shall cease only when a person ceases to be an owner. (“Declaration of Covenants, Conditions, and Restrictions for Crawford Falls Subdivision”)