I really do not know why I am bothering to comment on the newest proposed cemetery rules and regulations. I have already twice been through this cruel and callous farce, commenting on previous proposed rules on January 11, 2018, and June 23, 2018. It is very clear that the Austin Parks and Recreation Department (PARD) has absolutely no interest in complying with the City Council resolution enacted October 17, 2013, which required the City Manager, stakeholders, and PARD to work together on evaluating current cemetery policies, and no desire or intention of working with or listening to stakeholders. It is also apparent that PARD has already decided what it wants to do and is only going through the motions of pretending to interact with the public or caring about the feelings or concerns of those with loved ones or friends interred in Austin cemeteries. After what is now approaching a decade of bureaucratic foot-dragging and equivocations by PARD, I created a website documenting in detail PARD’s incompetence, negligence, and past and continuing violations of state and local law (https://saveaustinscemeteries.blogspot.com/2022/09/protect-austins-cemeteries-from-pard.html) and will be providing links to this website throughout my response.
First and foremost, the proposed rules not only fail to address the current widespread neglect and mismanagement of the cemeteries, they will in fact exacerbate the current poor conditions.
The proposed rules, like the previous proposed rules, absolutely fail to address the continuous blatant neglect and mismanagement of the cemeteries by PARD and its disrespectful treatment of what should be hallowed ground. If anything, the rules will only exacerbate the already horrendous existing conditions at Austin cemeteries (https://saveaustinscemeteries.blogspot.com/p/not-so-benign-neglect.html). PARD has designed these rules not to protect the final resting places of those Austin citizens have entrusted to its care, but to give it unchecked power to rip out any tree, flower, garden, border, or memorial it deems in its way so that it can drive heavy equipment and mowers unimpeded over gravesites. Multiple times PARD has stated that it wants to remove gravesite gardens, memorials, and ornamentation, regardless of how many decades they have been in place or their historic value, so that it can simply drive mowers and other equipment over graves. Graves throughout Austin Memorial Park (AMP) are already desecrated by deep ruts and tire tracks and headstones and other memorials have suffered significant damage from PARD equipment. My website not only documents this disgraceful treatment of gravesites by PARD (https://saveaustinscemeteries.blogspot.com/p/demolition-derby.html, https://saveaustinscemeteries.blogspot.com/p/demolition-derby-part-ii.html), but the City of Austin Historic Cemeteries Master Plan (Master Plan) issued in August of 2015 noted damage to headstones and memorials resulting from the use of heavy equipment; the Master Plan expressly recommends avoiding using riding mowers and metal core trimmers within twelve inches of markers and plot enclosures and instead to use weed trimmers using light gauge nylon line without metal cores for detailed trimming.
My family became involved with this fiasco simply because we wanted to prevent tire tracks from desecrating a family grave. On April 28, 2006, my vibrant, brilliant 13-year-old niece, Shoshana, died suddenly of myocarditis. She was laid to rest in AMP. Soon afterwards, when visiting her daughter's grave my sister-in-law, Tina Huckabee, discovered tire tracks from maintenance equipment cutting through the grave. She found this emotionally distressing and demeaning to the memory of her daughter. Huckabee is an avid gardener who specializes in native and adapted plants. Noticing that other graves were covered by memorial gardens, often outlined in stone or brick, she twice contacted the office at AMP to request permission to plant a memorial garden on her daughter’s grave. When she received no response, she and my brother outlined their daughter’s grave in cut limestone and planted a garden which has continued to thrive and bloom. My father died on December 13, 2012, and was buried next to his granddaughter. We requested that AMP personnel not place sod on his grave and instead we outlined his grave with with stone and planted a memorial garden there. As set forth on my website, multiple graves in the vicinity of my niece’s and parents’ graves have been scarred and dishonored by multiple tire tracks and ruts. Only the stone borders and carefully tended gardens on my family plot have saved these gravesites from the same disgraceful treatment by PARD. Under proposed Rule 14.4.10-Ornamentation and Decoration, Section (E), PARD has absolute sole discretion to, without notice, “remove an item that . . .interferes with cemetery operations or maintenance.” This would expressly permit PARD to tear out the existing borders and gardens so that it could again desecrate these graves with tire tracks and ruts (ironically, the 2015 Master Plan also recommends that PARD should, "Encourage the establishment of groundcovers within curbed or walled family plots, to reduce the amount of mowing and trimming required,” the very thing PARD wants to ban under these rules). Nothing in the proposed rules requires PARD to make any attempt to repair or restore a gravesite after tearing out these long-established borders and gardens; in fact, under under Section (F), PARD is expressly relieved of any responsibility “for the theft or vandalism of ornamentation, decoration, or any other personal property left in a cemetery.” The border and garden on Shoshana’s grave have been in place for some 17 years and on my father’s for over a decade. They cannot be removed without causing significant damage to these graves. Further, PARD has repeatedly alleged that it lacks sufficient resources and staff to properly maintain the cemeteries. There are hundreds of gravesite gardens and memorials scattered throughout the public cemeteries, many of which have been in place for years and cannot be removed without substantially destroying or desecrating the gravesite, leaving gaping holes, trenches, and exposed soil. Yet PARD has never publicly confirmed that it would provide the substantial materials, resources, and staff to repair, fill-in, level, sod, water, and maintain these gravesites after it has finishes tearing them apart. In fact, under these proposed rules, PARD not only has unlimited power to destroy these long-established memorials, the rules impose no duty on PARD to repair the damage or restore the gravesites after it has removed any plantings or ornamentation, and expressly indemnifies PARD from any responsibility for “theft or vandalism.” And at the same time PARD is once again free to plow over the graves with its heavy equipment, leaving tire tracks and ruts and damaging headstones
I note that I and Tina Huckabee have both been personally told by Ms. Kimberly McNeeley, Acting Director, PARD, that any proposed rules and regulations would not apply to existing gravesite gardens and memorials. On May 10, 2018, Ms. McNeeley approached me after I testified before the City Council regarding PARD’s failure to properly implement the perpetual care trust fund, and specifically told me that there was never any intention that the rules would apply to existing graves. Yet, not only does nothing in these rules provides that they are prospective only, cemetery staff have made in amply clear that they will apply these rules to all existing gravesites.
PARD’s claim that it must have unchecked authority to remove any gravesite ornamentation or plantings in order to maintain the cemeteries has no support in fact.
That the rules were not intended to apply to existing gravesites is only only one of the lies PARD has told us regarding gravesite memorials. PARD has also repeatedly claimed that: mowers running over objects left on gravesites can cause injury to employees or citizens; and potential buyers have expressed distaste for the "unsightly look" of city cemeteries and purchased lots elsewhere, resulting in lost revenue.
To force PARD to document these claims, I made two public information requests: one seeking any and all records regarding work-related injuries sustained by city employees or contractors at AMP, from September 1, 2013, to October 10, 2022; and the other requesting any and all documents regarding persons who have declined to purchase or retracted a purchase of grave plots in Austin public cemeteries because of conditions at the cemeteries. Detailed results from these two requests are set out on my website (https://saveaustinscemeteries.blogspot.com/p/the-paper-trail-to-nowhere.html).
Regarding work-related injuries, the documentation I received showed that out of 42 incidents over a six-year period (PARD failed to respond to my full request, providing only documentation from 2016 to 2023), there were three injuries involving riding mowers: an employee suffering neck and back pain after a car struck the riding mower; an employee cut his hand while changing the blades on a riding mower; and an employee on a riding mower was struck by a golf ball hidden in the grass, but there was no evidence that the ball had originally been placed on a gravesite. More employees were injured by insect stings or bites than using a riding mower. Nothing in PARD's own documentation supports PARD's claim that in the name of employee and public safety that it must destroy hundreds of long-established gravesite gardens and memorials. Ironically, the documentation included an incident of an employee who was injured helping unload an iron border that had been removed from a gravesite from a pickup truck. While the employee was helping carry the border to the storage area, he caught his left leg on a metal hook rod, which had also been removed from a gravesite, causing him to fall and injure his ankle. Ironically, if PARD had simply left these items at the gravesites where they had been placed by the families, there would have been no such injury. The employee was not injured by a gravesite decoration in situ, but only after PARD illegally and arbitrarily removed the decorations and placed them in storage. If PARD carries out its declared plan to remove hundreds of gravesite gardens and memorials throughout the Austin cemetery system, it is likely there will be an increase in similar reports of employee injuries.
As to the second request, On October 22, 2022, I received the following response from the City of Austin: “The City of Austin has no responsive documents to your request.” In other words, PARD could not produce a single document backing up this oft-repeated claim that families are refusing to purchase plots at cemeteries such as Austin Memorial Park (AMP) because of "unsightly" gravesite gardens and memorials (yet somehow these same potential purchasers are supposably undaunted by the blatant neglect and poor maintenance at AMP, such as the sagging rusted chain link fence, the tilted and fallen tombstones, and gravesites rutted by tire tracks).
Before I discuss the proposed rules, I also want to make the following points:
- Neither the City of Austin nor PARD has the legal authority to impose new rules or regulations regarding existing grave site memorials and gardens. Therefore, the proposed rules must expressly state that they will apply only prospectively.: https://saveaustinscemeteries.blogspot.com/p/waive-goodbye.html
- PARD has repeatedly failed to properly notify the public and hold open public meetings regarding this very important and sensitive issue. There are many citizens in Austin who are not computer savvy or who do not have access to the Internet and these citizens have been effectively disenfranchised by PARD’s decision to limit public notice to the Internet and avoid truly open public meetings and a transparent rules process: https://saveaustinscemeteries.blogspot.com/p/we-dont-need-no-stinkin-public-input.html, https://saveaustinscemeteries.blogspot.com/p/beware-of-leopard.html
- The City of Austin has created a Perpetual Care Trust Fund in accordance with Texas law, yet not only has PARD refused to implement this trust, it has blatantly violated state and local law by illegally expending over two million dollars from the fund. Properly and transparently administered, this trust could not only resolve issues regarding the grandfathering of existing gravesite memorials and gardens, but could provide much needed funds to PARD for maintaining and beautifying the cemeteries as a whole. This fund should be incorporated in and made part of the cemetery rules and regulations as it directly involves the maintenance of individual gravesites and the city cemeteries. Further, any rules and regulations must be placed on hold until PARD complies with both state law and Austin ordinances and fully implements such a trust: https://saveaustinscemeteries.blogspot.com/p/grave-robbery.html
- Over the years PARD has claimed that it lacks sufficient funds to properly maintain the cemeteries. Yet, PARD has paid significant public funds over the past nine years to outside consultants and organizations regarding Austin's cemeteries. This includes at least $32,920.92 paid to Smith and Associates in 2014 to provide facilitation services and coordinate updating the rules and regulations, although nothing productive resulted. The City of Austin paid almost a quarter of a million dollars for the Master Plan that PARD not only continues to ignore, but is in fact actively working against under its proposed cemetery rules and regulations: https://saveaustinscemeteries.blogspot.com/p/money-down-rat-hole.html
RULES
I will started by pointing out three things that the posted rules do not include.
First, under procedures for the adoption of rules set out in the Austin City Code (Chapter 1-2): https://library.municode.com/tx/austin/codes/code_of_ordinances?nodeId=TIT1GEPR_CH1-2ADRU, Section 1-2-4 (Notice of Proposed Rule) (B) provides that before any department may adopt a rule, it must file a notice meeting certain criteria, including, under Subsection (1), "the text of the proposed rule, indicating changes from the current text, if any. . . ” PARD has repeatedly stated to the public, stakeholders, and the media that the current proposed rules are an update of the 1978 rules; in fact, the posting with the city clerk expressly states, “The proposal is to update and incorporate rules for City of Austin cemeteries adopted in 1978 pursuant to Resolution 780504-22, into the Building Criteria Manual where the Park Use Rules are posted.” Therefore PARD has failed to with the procedures for rules adoption set out in the City Code as the posted notice does not indicate “changes from the current text.”
Second, PARD has in a slide presentation, presented on October 10, 2022, in a ZOOM meeting with the public, and on November 16, 2022, before the Finance Committee of the Parks and Recreation Board, asserted that in October of 2017, PARD added “section 14.4.12-General Regulations, (F) Appeals that outlines a process for anyone wishing to appeal decision made by the Cemetery Administrator under the Rules.” The slide further states, “With the updated rules and a evidence of a continuous open line of communication, we hope to be able to better serve our community." While the PARD presentation touts this inclusion of an appeals process as evidence of its supposed willingness to work with stakeholders, there is no such rule or in fact any appeals process in the current proposed rules. When I confronted Ms. Tonja Walls-Davis, Cemetery Operations Manager, about this false claim, she admitted that the most recent proposed rules did not include an appeals process; she further responded that “Legal” had removed the appeals process but that the slide was not really misleading because it was correct as regards 2017, despite the fact that the presentation including the misleading slide was being made in 2022.
Third, nothing in the rules requires PARD to publicize these rules or make them available to persons purchasing plots in the Austin cemeteries. This nearly decade-long debacle started because PARD never publicized or attempted to enforce the original cemetery rules and regulations enacted on May 4, 1978, prior to September of 2013. Although, my family has purchased six sites at AMP, PARD never provided to any member of our family at any time a document or pamphlet setting out the cemetery rules and regulations. In response to a public information request I made for any and all documents regarding the implementation and enforcement of the 1978 cemetery rules and regulations, I did not receive a single document showing that PARD had made any attempt following the enactment of the rules and regulations in 1978 to publicize these rules prior to September of 2013, nor were these rules and regulations included in the City of Austin Code of Ordinances. In my June 23, 2018, comments regarding the then-proposed rules, I recommended that, to avoid any future issues regarding the cemetery rules and regulations, adding a requirement that PARD must ensure that rules, and any proposed or adopted revisions or changes, are published and readily available to the public, including, but not limited to, prominently posting these rules on its website and making copies of the rules available at all cemeteries under its management. Further, my proposal required PARD to provide a written copy of the rules to any and all persons who inquire about purchasing or who purchase a lot or space within any cemetery managed by PARD. I have since made this proposal to various PARD personnel, but PARD continues to ignore this simple and reasonable recommendation.
Comments Regarding Specific Proposed Rules
Under proposed Rule 14.4.4-Use of Cemeteries Generally, Section (H) requires that any events and tours must be approved in advance by Cemetery Operations and are subject to such further approval as may be necessary, as determined by Cemetery Operations in its sole discretion. Under Subsection (I), commercial filming and photography must be approved in advance by Cemetery Operations. Under 14.4.3-Definitions, Section (B)(19) “tour” is defined as “a visit to one or more cemetery that is focused on the history of the cemetery and those interred there and/or or the natural environment of the cemetery, but does not include a special event within the meaning of City Code Section 8-1-1” (under Section 18 of Section 8-1-1, a “special event” is defined as “an activity that anticipates 1,000 or more attendees and is conducted pursuant to an approval that allows for the exclusive use of all or part of the public recreation area for the activity”). Approval is within the sole discretion of Cemetery Operations, but there are no limits or guidelines regarding what sorts of tours, photography, or filming is permitted. Under this rule, it appears that Cemetery Operations has the sole discretion to authorize an activity that many Austin citizens might find profoundly disrespectful in a cemetery setting, such as Halloween tour with costumed actors playing the roles of ghosts or murder victims, a fashion shoot with models draped over headstones, or even the filming of a music video or horror movie. This rule must clarify that any tour or commercial photography or filming must shall preserve the peace and quiet of a cemetery, must treat the cemetery grounds with all due deference and honor, and that participants must avoid standing or walking on any grave or climbing or sitting on any monument.
Under proposed Rule 14.4.5-Cemetery Operations Rights and Responsibilities, Section (A), Cemetery Operations “reserves the right to perform the following activities within a cemetery to preserve the public health, safety, comfort, and welfare”
1) Repair and maintain fences, walls, buildings, roads and other improvements;
2) Level and straighten memorials;
3) Maintain lawns, shrubbery, trees, and other plants; and
4) Open, close, and restore graves for interment services, disinterments, and reinterments.”
PARD does not merely have a “reserved right” to properly maintain the city cemeteries, it has an unconditional legal duty under state law. Section 713.011 (Maintenance Of Municipal Cemeteries), Texas Health and Safety Code, Subsection (a) provides that a municipality that operates or has jurisdiction over a public cemetery “shall maintain the cemetery in a condition that does not endanger the public health, safety, comfort, or welfare.” Under state law, therefore PARD “shall” maintain the cemeteries. As well set out in Texas law, “shall” in a statute indicates that certain actions are mandatory, and not permissive. Section 311.016 ("May," "Shall," "Must," Etc.), Texas Government Code, Subsection 2, clearly states that “shall” imposes a duty.
Further, under Section 713.011 (b), a municipality's responsibility to maintain a cemetery under this section includes:
1) repairing and maintaining any fences, walls, buildings, roads, or other improvements;
2) leveling or straightening markers or memorial;
3) properly maintaining lawns, shrubbery, and other plants;
4) removing debris, including dead flowers and deteriorated plastic ornaments; and
5) promptly restoring gravesites following an interment.
Again, this is a “responsibility” that state law imposes on PARD. The language of the proposed rule makes it sound as if PARD has the right to perform certain maintenance activities, but is not required to do so. State law clearly and expressly mandates that PARD unconditionally perform these duties.
Under proposed Rule 14.4.5-Cemetery Operations Rights and Responsibilities, Section (B), Cemetery Operations may correct interment errors or conveyance of property errors by relocating remains to:
1) a space in the same cemetery; or
2) a space in another cemetery if space is not available in the same cemetery.
This is absolutely unacceptable. It is impossible to image a more callous, cruel, and cold-hearted response by PARD. If because of its admittedly poor and haphazard records PARD inadvertently sells the same plot twice or buries a person in the wrong plot, PARD grants itself under this rule the absolute right to “relocate” the “remains” to another gravesite or even another cemetery to cover up its error. This is not simply moving around a piece of furniture. The “remains” as so euphemistically set out in the rule are those of a human being. We are talking about a grave selected by surviving family and friends to be the final resting place of a loved one, no doubt marked by a headstone or other monument. I know that when my family selected our plot at AMP, we carefully chose a location shaded by nearby trees; families often lovingly select locations because of their beauty or proximity to family and friends. Yet, because PARD made a mistake, under this rule it can callously override a family’s careful selection and “relocate” the “remains” in any available plot, even in another cemetery. There is nothing in this rule that even requires that PARD notify the family or owner of the gravesite or to move and reset any monuments. Nor does the rule indicate that PARD even covers the expenses of disinterment and reinterment; technically, this rule could allow Cemetery Operations to add insult to injury by actually requiring the family to cover the costs of disinterment and burial, even thought the fault lies solely with PARD. I cannot image the tremendous anger and sorrow I would suffer if PARD suddenly declared that solely because of its own negligence, my parents were buried in the wrong plots and that they would have to be “relocated” to a space far away from the grave of their beloved granddaughter who currently lies beside them. Even worse, I cannot image visiting the cemetery only to discover that my parents’ graves have suddenly disappeared because PARD “relocated” them.
This is not merely hypothetical. I personally know of one woman who purchased two plots at Austin Memorial Park in 1982. In 2011, her husband died and was buried in one of the plots and at that time the woman placed a headstone for the both of them on the plot. Later in the year, she received a call from the City of Austin stating her husband’s body would be exhumed because the plots she and her husband had purchased some 29 years earlier had previously been sold to someone else. She ended up fighting with PARD for almost a year, suffering many sleepless nights, before PARD worked something with other party, allowing her husband to finally rest in peace.
PARD must have no right to disinter or move any grave simply to cover up PARD’s error. If PARD does discover that it has sold the same plot twice or otherwise made an interment error, PARD should be required to refund any and all costs of the plot to the second party and give them their choice of any other plot without charge, but under no circumstances should PARD ever be allowed to play some sort of macabre musical chairs with deceased persons. That PARD would even consider proposing such a rule demonstrates all too well that PARD has no respect for those resting in the city cemeteries or compassion for their surviving family and friends.
Proposed Rule 14.4.6-Space Holder Rights and Responsibilities, Section (B), proves that the owner of a space is solely responsible for cleaning and repairing memorials and mausoleums. An owner must obtain written approval from Cemetery Operations before undertaking such tasks. This is a violation ofSection 713.011, Texas Health and Safety Code, which imposes on PARD an affirmative responsibility to maintain markers or memorials. Further, order Section (D), if memorial or mausoleum is in disrepair, Cemetery Operations must attempt to notify the owner to undertake repair or replacement and if the repair or replacement has not been completed within 180 days of the first attempt to notify the owner, Cemetery Operations may repair or replace the item and charge the expense to the owner. Again, this violates state law, which clearly imposes this duty solely on the municipality. Nothing under the state law allows PARD to shirk this duty or shift the responsibility and cost entirely on the space owner.
PARD has been operating under its own bizarre misinterpretation of Section 713.011, claiming that it is only obligated to repair monuments when the conditions have deteriorated to the extent that public health or safety is endangered. PARD has apparently even stated to the media that “city employees are not permitted to clean, maintain, repair or replace damaged memorials in their cemeteries” (https://saveaustinscemeteries.blogspot.com/p/news-blues.html). This flies in the face of any logical and good-faith interpretation of Section 713.011. Section 713.011 clearly sets out a municipality’s responsibilities in maintaining a cemetery. PARD is conflating Subsections (a) and (b) to come up with its own self-serving interpretation of the law which excuses it from all but the most minimal maintenance requirements. When Subsection (a) provides that a municipality “shall maintain the cemetery in a condition that does not endanger the public health, safety, comfort, or welfare” it is setting forth the minimal standard under law, not saying that a municipality is only required to maintain a cemetery in such condition. Subsection (b), which expressly sets out a municipality’s specific maintenance responsibilities does not include this language. Nothing in Subsection (b) provides that a municipality is required to only attend to these responsibilities when conditions have deteriorated to the point that public health or safety is endangered.
Section (C) requires that the owner, heir, or assign, provide Cemetery Operations with current contact information and the contact information of any person designated by the owner to receive communications. The owner must update such information as necessary and Cemetery Operations is entitled to rely on the contact information on file in communicating with the owner. However, PARD has admitted in the past that its current record keeping is so poor and haphazard, it often is unable to locate the space owner or his or her family. So what happens to these existing gravesites under these proposed rules? If PARD cannot find an owner or heir to pawn off its legal duty to, does that mean that PARD is permitted to allow grave markets to tumble like dominos? Even assuming that the rule as proposed is approved and PARD somehow miraculously collects this information and properly maintains the records, over the years people die, families move away, or someone passes without any remaining living relatives. In such event, are these memorials simply allowed to eventually tilt and tumble, lying forgotten and neglected?
Finally, under proposed Rule 14.4.7-Contractor Required for Memorial Work, Section (A), the resetting, releveling, repairing, or cleaning of a memorial or other structure within a cemetery must be performed by a contractor approved by Cemetery Operations. Such work may be subject to an inspection fee and other fees as set forth in the fee schedule available from Cemetery Operations. So not only is PARD shirking its duty under state law and trying to pawn off the responsibility and expense of maintaining grave markers to the space holder or heirs, PARD is apparently looking at making extra income by charging fees to those performing what is the PARD's legal obligation.
Proposed Rule 14.4.8-Memorial Specifications, Section (C) provides that “One memorial may be installed at the head and one at the foot of a space; provided, however, that a monument bench may be installed only at the head of a space. Memorials installed at the head of a space shall be centered and aligned with adjacent memorials.” Under Section (D), memorials must be made of granite or marble at least 4 inches thick or cast bronze of any thickness. Subsection (F) prohibits “mausoleums, tablets, ledgers, and curbing,” but expressly provides that such items installed prior to the adoption of these rules may remain in place. However, none of these terms are defined. For example, is a stone or brick border outlining a gravesite considered curbing? Can my family assert that the long-established hand-cut limestone bricks bordering our loved ones’ graves are therefore curbing and grandfathered under these rules? Further, if PARD is claiming that it must be allowed to remove long-established gravesite gardens and memorials because they somehow now impede its ability to operate the cemeteries, then why is it making any exceptions and grandfathering some existing grave ornamentation? This is just another example of PARD’s hypocrisy and arbitrariness.
Under Section (G), benches installed prior to the adoption of these rules may remain in place if they are entirely contained within a space, are made of marble or granite, and are in a safe and stable condition as determined by Cemetery Operations in its sole discretion. Benches that do not meet these criteria may be removed without further notice. First, there are many concrete or cement benches scattered throughout the cemeteries that are every bit as sturdy and attractive as marble or granite, and while not inexpensive, are certainly more affordable for many families. There are also certainly marble or granite benches that would be subject to arbitrary removal simply because they are not at the head of a grave. There is also no logical reason why a sturdy attractive stone or cement bench cannot be placed within the foot of a gravesite, other than PARD’s obsession with plowing its heavy equipments over gravesites unimpeded. Frankly there are few, if any existing, benches in the Austin cemeteries that can meet these strict and narrow requirements.
PARD has been extremely disingenuous with stakeholders about the effect of this proposed rule. In the October 10, 2022, ZOOM meeting, one participant stated that in 2016 she was given permission to place a cement bench at her daughter's gravesite (noting that this bench cost her $1,000) and wanted to know whether the bench would be allowed to stay under the new rules. Ms. Walls-Davis stated PARD would work with the participant to help her properly place the bench and that the bench would be permitted if it was "made out of the proper material." She conveniently failed to mention that under the rules for the bench to be "properly" placed, the participant would have to give up her daughter's headstone and that the rules permit only costly marble or granite. One wonders whether Ms. Walls-Davis forgot this crucial point, just mentioned minutes before in PARD's presentation, or she was simply trying to avoid admitting in a public forum that the bench, despite PARD's expressed prior permission, would be simply be prohibited. During his presentation before the Parks and Recreation Board Finance Committee on November 16, 2022, Mr. Lucas Massie, Assistant Director, PARD, specifically stated that cement benches would be permitted, even though under the proposed rules only extremely costly marble and granite benches are allowed.
Proposed Rule 14.4.10-Ornamentation and Decoration permits only the following items within a space: fresh and artificial flowers in an invertible vase or other non-breakable container; commemorative stones; stick flags of no more than 18 inches in length; and items made entirely of cloth. The permitted items may be placed only at the head of a space or to the immediate left, right, or on a memorial. Under Section (D), trees, shrubs, and other plants, mounds, and holes, are strictly prohibited, regardless of whether they are within or outside a space, and may be removed without further notice. Further under Section (E), Cemetery Operations in its sole discretion may, without notice, remove an item that presents a current or reasonably foreseeable threat to public health or safety or interferes with cemetery operations or maintenance. Section (F) indemnifies the city from the theft or vandalism of ornamentation, decoration, or any other personal property left in a cemetery.
I have already addressed some of my concerns regarding this rule granting PARD unchecked power and sole discretion to remove any item it sees fit from any gravesite for pretty much any reason, discussing how these proposed rules fail to address neglect and mismanagement of the cemeteries and in fact will exacerbate the current poor conditions. However, I have further issues with these rules.
These public cemeteries are vital elements of Austin’s history. The 2015 Master Plan (which PARD continues to ignore) is entitled City of Austin Historic Cemeteries Master Plan. Austin AMP was established in 1927 as a private cemetery and was purchased by the City of Austin in 1941, making it into a public cemetery. In 2008 AMP was designated as a Historic Texas Cemetery by the Texas Historical Commission. AMP is the final resting place for many notable Texans. Despite the fact that Austin’s public cemeteries are important links to Austin's and the state's history, under these rules PARD is authorized to remove any grave ornamentation without any consideration or analysis of the historic importance of these items. PARD is currently ripping out large statues, urns, and other grave ornamentation from Austin’s cemeteries, many with the definite patina of age (https://saveaustinscemeteries.blogspot.com/p/tomb-raiders.html). Imagine a maintenance crew in charge of a historic mansion arbitrarily snatching up antique furnishings and piling them up in the back yard because they "interfered" with sweeping and vacuuming. This is essentially what PARD is doing when it removes these grave ornaments simply so it can run its heavy equipment through the cemetery grounds unimpeded.
These grave decorations were selected and installed by families and friends to honor their loved ones. Removing these from the graves not only destroys a historical record, it is a disgraceful discourtesy to the families who lovingly chose them and a dishonor to the dead. Nothing in the rules even requires PARD to provide the families with any notice that items are being removed or show even the smallest courtesy or concern. Nor is there anything in the rules regarding how these removed items will be stored or disposed of. Many of these items were not only costly when first purchased, as someone who is familiar with the antiques market, I know that such sculptures, urns, and planters can sell for many hundreds of dollars on the secondary market, as they are popular garden ornaments. From what I have seen at AMP, PARD is currently and without any authorization removing grave ornaments and stacking them behind piles of waste, surrounded only by a decaying wood plank fence. These items could be not only be broken or damaged, they could easily be stolen and sold off. Further, since there is no required notice to the families, and the fact that these are historic cemeteries with graves may be many decades old, it is likely that many of these items cannot ever be reclaimed by the families. What happens to these artifacts of Austin history? Does PARD get to sell them off and pocket the proceeds? Can PARD employees just help themselves? Or even more shamefully, are these grave ornaments simply to be destroyed and dumped like ordinary trash? These are not merely discarded fast food wrappers or abandoned tires. They are gravesite decorations meant to honor and remember a loved one, they are an integral part of Austin’s historic cemeteries, and many may have significant monetary value as well. Not only are these proposed rules giving PARD absolute license to strip Austin’s historic cemeteries of grave ornamentation, regardless of its age or historical importance, the rules actually could encourage the looting of gravesites for valuable artifacts in the name of “complying” with the rules.
To try to gather more information regarding displaced or dismantled grave ornamentation, on January 22, 2023, I submitted a public information request for all documentation regarding the removal of any item of grave decoration or ornamentation at AMP, excluding cut or artificial flowers or temporary holiday decorations, from September 1, 2013, through January 20, 2023. I recently received notice from the City of Austin that I may not have a response to my request until March 10, 2023.
Further, these proposed rules could blatantly violate federal law barring discrimination. For example, in the Jewish tradition, visitors leave a small stone when visiting a grave site as a symbol of the permanence of love and memory. The stones are traditionally placed on the headstone or at its foot and they are never meant to be removed. In the Jewish section of AMP, stones have been left by mourners and visitors on their loved ones graves for decades; there is even a receptacle holding stones for visitors to use. No document I received through my public information requests has mentioned these stones as being an issue. The proposed rules would allow “commemorative stones” to be placed at the head of a gravesite, but the term is not defined. Are the small stones traditionally left at Jewish graves commemorative stones? Suppose sometime in the future a new head of Cemetery Operations decides these do not count as “commemorative stones” because they do not contain dates or names and demands that they be removed? This would be a blatant violation of Jewish tradition and a desecration of Jewish resting places. Further, the rules do not take into account other religious or ethnic traditions regarding mourning. Under these rules, for example, Hispanic members of the community would be barred from decorating gravesites in honor of Día de Muertos, as they could not construct the traditional ofrendas (altars) at the gravesites of loved ones or decorate the graves with the mounds or garlands of marigolds. Austin citizens of Chinese heritage would be barred from leaving traditional offerings of incense and food during the annual Qingming or Ching Ming Festival. Nothing in the rules takes into account the religious and ethnic diversity of Austin or provides for any reasonable accommodation of religious or ethnic practices. Title II of the United States Civil Rights Act of 1964 prohibits discrimination on the grounds of race, color, religion, or national origin in any place of public accommodation. The cemeteries are public places and imposing any new rule that could potentially prohibit families from exercising religious or ethnic traditions regarding grave ornamentation would violate federal law. .
Also, bizarrely, the proposed rule allows “items made entirely of cloth,” while barring any decoration of stone, bronze, or other hardy weatherproof material, even if it is placed entirely within the gravesite at the head of a space or to the immediate left, right, or on a memorial. In October of 2013, I and other stakeholders were told that PARD wanted to enforce the rules and regulations in part because people were leaving “inappropriate" items on graves, including clothing and stuffed animals, which PARD claimed deteriorated and fell to pieces in the weather. In 2015, I placed on my parents;’ gravesite a decorative stone with a hand-painted plaque from Israel containing their names. It is entirely within the plot and is set between at the head of the gravesite between their headstones. On nearby gravesites, I have seen other memorials, such as small cement plaques with the handprints of grandchildren, placed within gravesites. Yet, under these rules, these pieces of touching (and weatherproof) art are arbitrary banned, but a tee shirt or plush teddy bear, which would fade and fall apart in the sun and rain, is permitted. This rule makes utterly no sense and shows just how arbitrary and capricious PARD’s rule-making process is. A more logical rule would allow small sculptures and other objects of stone, bronze, or other weatherproof materials falling within a certain size and weight range to be placed at the head of a gravesite while barring non-weather resistant items such as cloth.
Final Comments
I want to make one thing very clear—I and other stakeholders completely understand and agree that there is a need for reasonable regulations to protect the safety of PARD employees and the public. All we have ever wanted is to sit down with PARD to express our concerns and exchange ideas regarding the development of reasonable cemetery rules and restrictions, as envisioned by the October 17, 2013, City Council resolution. We request the following:
- a restart to the extremely flawed and unfair rules and regulations process. The process must be open to all the citizens of Austin, not just those who happen to be on PARD's e-mail list or have Internet access. This means public notice not only on city websites and through e-mail, but notices posted at cemeteries, community centers and libraries, in the local press and other media, and sent out through social media;
- multiple in-person meetings held throughout the city to ensure that all of the public has an opportunity to attend and be heard;
- public input be sincerely considered and incorporated in any new rules or regulations as much as possible;
- any rules and regulations must be prospective only and existing gravesite memorials and garden be grandfathered in;
- the recommendations of the 2015 City of Austin Historic Cemeteries Master Plan regarding the use of heavy equipment around gravesites, the planting of native and adaptive turf and plants, and encouraging the establishment of ground covers within curbed or walled family plots be incorporated in any proposed rules and regulations;
- the proposed rules and regulations allow the continuing exercise of religious and ethnic practices in the cemeteries, such as the Jewish tradition of visitors leaving a small stone on a grave;
- the Perpetual Care Trust Fund (PCTF) , as enacted by the city in 1992, be implemented by PARD in accordance with state and city law so that families can finally contribute to the perpetual care of their loved ones' final resting places. Such implementation must include clear, open, and transparent accounting of funds donated to the trust and the expenditure of any revenues; and
- an intensive independent audit of the administration of the PCTF regarding all transactions, revenue, and expenditures since 1992.
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