Grave Robbery

Section 713.002 (Local Trust for Cemetery), Texas Health and Safety Code, a municipality that owns, operates, or has control of a cemetery may act as a permanent trustee for the perpetual maintenance of the lots and graves in that cemetery. In order to act as such a trustee, the municipality's governing body must adopt an ordinance or resolution stating the municipality's willingness and intention to act as a trustee, creating a perpetual trust. Section Section 713.003 (Local Authority to Receive Gifts; Deposits for Care; Certificates) provides that such a municipality may adopt rules to receive a gift or grant from any source and to determine the amount necessary for permanent maintenance of a grave or burial lot. The municipality then must accept such amount on behalf of that person or a decedent for the designated grave or burial lot and issue a certificate in the name of the municipality to the trustee or depositor. Pursuant to Section 713.004 (Use of Funds), the municipality is authorized to invest the funds received in interest-bearing bonds or governmental securities and to apply income or revenue of the fund for the maintenance and care of the grave, lot, or burial place for which the funds are donated. However, any income or revenue that is more than the amount necessary to accomplish the trust may be used to beautify the entire cemetery. 

The City of Austin implemented such a trust pursuant to the Texas statutes. As of 1992, Section 10-1-11 of the Austin Code of Ordinances (Code) establishes the City of Austin Perpetual Care Trust Fund (PCTF) in accordance with Chapter 713 (Local Regulation of Cemeteries), Texas Health and Safety Code to: assure the perpetual maintenance of the city cemeteries; invest and reinvest money in trust accounts in the trust fund; and apply the income earned by the PCTF that is in excess of the amount necessary to maintain the individual cemetery lots or graves to the beautification of the city cemeteries generally. Sections 10-1-12 authorizes the city clerk and the cemetery administrator to prescribe rules regarding the administration of the trust fund and authorizes the city clerk, in consultation with the administrator, to determine the amount of money necessary for the permanent care and upkeep of individual graves or family lots and to accept such amounts. Section 10-1-13 through 10-1-18 concern the process by which a person may submit an application to act as trustee for the person or a decedent and pay a deposit into the trust fund. Finally, Section 10-1-20 requires the director of the Financial and Administrative Services Department to invest the money deposited in interest-bearing bonds or governmental securities, keeping the principal of the funds deposited intact as a principal trust fund. The cemetery administrator must first apply the interest, revenue, or other accrual or increase in the funds deposited for a specific cemetery lot, grave, or burial space to maintain that specific lot, grave, or burial space. However, the director may authorize the administrator to use any revenue that is greater than the amount necessary to accomplish the trust for a specific cemetery lot or grave to beautify the cemetery where the lot or grave is located. Existing perpetual care funds were transferred by the City to PCTF.

Despite the fact that PCTF has been part of the City Code for some 30 years, PARD has utterly failed to comply with the application process and record keeping requirements of the Code regarding PCTF; PARD is illegally preventing citizens from contributing to PCTF in violation of both the Code and state law. PARD has spent over $2 million in income from PCTF, but there is no accounting as to what the funds were used for and no evidence that the expenditures were to maintain specific gravesites and lots, the only expenditures permitted under both state and local law. Further, even though under both state and local law, the PCTF is supposed to be invested in "interest-bearing bonds or governmental securities,” allegedly there has been no reported revenue from 2016 through 2021, despite the fact that there is over $1 million in the fund. Finally, PARD not only has continued to violate state and local law regarding the PCTF, this year, without notice to any of the stakeholders or the public, it has sought to dissolve the PCTF to give it free access to spend the remaining principle of over $1 million as it sees fit, again without any transparency or accounting. 

2017

After I learned about the PCTF in doing research regarding the continuing issues with PARD and the cemetery rules process, I and my sister-in-law, Tina Huckabee, repeatedly attempted to contact the city clerk both by e-mail and telephone to find out how to apply as a trustee for my parents’ graves as well as her daughter’s grave. After we made several fruitless attempts to contact the city clerk and received no response, on December 26, 2017, I filed a public information request (PIR) with the City of Austin seeking all documents, memorandum, accounts, records, and information regarding PCTF established pursuant to Section 10-1-11 et seq. of the Austin Code of Ordinances from January 1, 1992, to date, including, but not limited to: any and all rules prescribed pursuant to Section 10-1-12; copies of all current and past written application forms prescribed by the City Clerk pursuant to Section 10-1-13; all current and past amounts, and the dates thereof, determined by the City Clerk as necessary for the permanent maintenance of a cemetery lot or burial space; the number of persons who have applied as trustees pursuant to Section 10-1-13 and the dates of said applications; the number of applications that have been accepted or rejected and the dates thereof, respectively; copies of all pages of the trust fund record book required pursuant to Section 10-1-19; and, an annual accounting of PCTF as of December 31 of each year from 1992 to present, including the principal, interest earned, and all deposits and expenditures.

2018

On January 26, 2018, I received electronically a handful of disparate documents in response to my PIR. Perhaps most significant are copies of documents I did not receive: no copy of the rules regarding the administration of PCTF provided for under Section 10-1-12; no copy of the written application form to create a trust, even though Section 10-1-13 requires the city clerk to prescribe such a form; no copies of any certificate of acceptance that the city clerk must issue under Section 10-1-15 to persons depositing funds in PCTF; no copy of entries in the “permanent, bound record book” the cemetery administrator is required to keep under Section 10-1-19 for each deposit made to PCTF, including the name of each depositor and the name and location of the cemetery lot or grave subject to the trust; and no copies of any report required under Section 10-1-21, which provides that the “director of finance shall regularly report to the cemetery administrator the status of each trust account created under this article” and that the “administrator shall regularly report to the director the charges made to each trust account for perpetual care of a grave or burial space.” There were no documents regarding the number of persons who have applied as trustees or the number of applications that have been accepted or rejected. Perhaps most significantly, there is not a single document to show that PARD is in compliance with either the Code or state law, which expressly provide that interest from PCTF must be expended for the maintenance and care of the grave, lot, or burial place for which the funds are donated and only then may any income or revenue that is in excess of the amount necessary to accomplish the trust be used to beautify the entire cemetery.

I did receive a number of pages from fiscal reports documenting both significant funds in PCTF, as well expenditures from it. These included “Combining Balance Sheets” for city trust or permanent funds (the terms appear to be used interchangeably) from 1991 through 2017 (scans of the relevant pages follow at the bottom of this page; if they are not fully legible on your device, you can access the Annual Comprehensive Fiscal Reports and use the exhibit title in the upper right hand corner of each scanned page to local the exhibit in the original report). The formatting of these pages changed over the years and were not always easy to interpret, but I has able to create a table showing the amount in PCTF at the end of each fiscal year (September 30), from 1991 through 2016, as well as revenues and expenditures over the subsequent fiscal year. 

From 1991 through 1988, PCTF was referred to as the “Cemetery Fund” or “Cemetery.” Beginning in 1999, it was denoted as “Perpetual Care Interest,” and from 2002 on was called “Perpetual Care.” In 1991, there was $760,000 in PCTF, and by 2016, there was $1,011,000. Under Section 10-1-20 of the Code, the director of the Financial and Administrative Services Department must invest the money deposited in PCTF in interest-bearing bonds or governmental securities, keeping the principal of the funds deposited intact as a principal trust fund. In all years except 2016 (there was no clear information for 2001), there was reported revenue. However, there does not seem to be any pattern to the revenues or any explanation why the revenues varied significantly from year to year. For example, the highest reported revenue was $772,000 for 2013, yet the lowest reported revenue was $12,000 for 2014, the following year. Even more puzzling was that in 2016, despite having over one million dollars in PCTF, there was no reported revenue. I do not see any plausible explanation regarding how a fund topping over one million dollars invested in interest-bearing bonds or governmental securities cannot have earned even a single penny of interest. Also note that beginning in 2002, all revenue figures end in nice round numbers, casting further suspicion on the credibility of the fiscal reporting.

Even more troubling was the amount of expenditures from PCTF. Under both state and local law the interest, revenue, or other accrual or increase in the funds deposited for a specific cemetery lot or burial space must first be applied to maintain that specific lot or space. If there is any revenue in excess of the amount necessary to accomplish the trust for that specific lot or grave, that excess may be used only to beautify the cemetery where the lot or grave is located. There is no other permitted use of this revenue. Yet, from 1991 through 2016, $2,216,255 of expenditures were made from PCTF. There were only six years (the information was unclear for 2001), in which there were no reported expenditures. The amounts ranged from a low of $7,665 in 1988 to a high of $742,000 in 2013. There is not a single piece document showing that these substantial expenditures were spent in accordance with both city and state law, in that the funds were first expended specifically for the upkeep and maintenance of the gravesites for which the trusts were established and any excess funds were expended on the beautification of the cemeteries in which those gravessites are located. From 2002 to 2014, there were expenditures for every year except for 2003 and 2006, and these expenditures were denoted as “Public recreation and culture.” If this indeed was what the proceeds of PCTF were spent on, it is a blatant violation of state and local law, as well as the trust of those who donated to PCTF believing that the revenues of the funds were be limited to maintaining the final resting places of their loved ones. Clearly someone is using PCTF as a cash cow, but we have no idea where the milk is going. It is clear, if you look as the neglected and deteriorated current state of the city cemeteries, it is not being spent on grave maintenance.

On January 11, 2018, in my comments to PARD regarding the proposed cemetery rules and regulations, I discussed how the implementation of a cemetery trust to allow citizens to fund the perpetual care of gravesites would provide significant funding for PARD, as well as provide for a more ecologically sustainable and attractive cemeteries, noting that Austin has in fact implemented such a trust. I stated that I would be more than willing to pay into such trust to preserve and care for the gravesite garden for my parent’s graves. Properly administered, I noted, such a 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. I have never received any response from PARD regarding my PCTF comments; similar comments from Ms. Huckabee regarding PCTF have also gone unaddressed., PARD responding with only a bland bureaucratic “your input is valuable to us” and utterly failing to answer her remarks regarding PCTF.

On February 20, 2018, Ashley Richardson, policy aide, Mayor Pro Tem Tovo, informed me by e-mail that she had requested that PARD contact me directly regarding PCTF. I responded that I was preparing a complaint to file with the City Auditor regarding PARD’s clear and continuing failure to comply with the city ordinances regarding PCTF and its possible fraud and misuse of that fund. I stated that I would give PARD until March 2, 2018, to get back to me regarding PCTF, but that if I did not hear from them on or before that date, I would file my complaint. I received no promised response from PARD, and consequently filed a complaint with the city Auditor’s Integrity Unit (see below). I have not received any response from the Auditor’s Office, other than a confirmation that my complaint was received.

From: "City Auditor's Integrity Unit" <oca_integrityunit@austintexas.gov>

Subject: Form submission: Integrity Violation Reporting Form

Date: March 2, 2018 at 10:41:15 PM CST

To: sharon@weintraub.name

Submitted on March 02, 2018

Submitted by user: Anonymous

Submitted values are:

==Contact Information==

Name: Sharon Weintraub

Phone Number: 512-323-9639

E-mail: sharon@weintraub.name

Do you wish to remain anonymous?: No

How did you learn about this reporting form?: On-line research.

What caused you to report this to us at this time?: The failure of the city clerk to reply to repeated requests regarding how to apply as a trustee to the Perpetual Care Trust Fund and the failure of the Austin Parks and Recreation Department to document in any way that the department is complying with city and state law regarding the administration of such trust.

==Circumstances==

These events or circumstances could represent a violation of: Misuse of City Resources If you chose ‘Other' explain briefly: 

Describe the event(s) or circumstance(s): I am contacting you because I suspect fraud, waste, or abuse by the Austin Parks and Recreation Department (PARD) regarding the Perpetual Care Trust Fund (PCTF) and request an audit concering PARD’s administration of PCTF. Under Section 713.002 (Local Trust for Cemetery), Texas Health and Safety Code, a municipality that owns, operates, or has control of a cemetery may act as a permanent trustee for the perpetual maintenance of the lots and graves in that cemetery. In order to act as such a trustee, the municipality's governing body must adopt an ordinance or resolution stating the municipality's willingness and intention to act as a trustee, creating a perpetual trust. Section 713.003 (Local Authority to Receive Gifts; Deposits for Care; Certificates) provides that such a municipality may adopt rules to receive a gift or grant from any source and to determine the amount necessary for permanent maintenance of a grave or burial lot. The municipality then must accept such amount on behalf of that person or a decedent for the designated grave or burial lot and issue a certificate in the name of the municipality to the trustee or depositor. Pursuant to Section 713.004 (Use of Funds), the municipality is authorized to invest the funds received in interest-bearing bonds or governmental securities and to apply income or revenue of the fund for the maintenance and care of the grave, lot, or burial place for which the funds are donated. However, any income or revenue that is more than the amount necessary to accomplish the trust may be used to beautify the entire cemetery.

The City of Austin has implemented such a trust pursuant to the Texas statutes. Section 10-1-11 of the Austin Code of Ordinances (Code) establishes the City of Austin Perpetual Care Trust Fund in accordance with Chapter 713 (Local Regulation of Cemeteries), Texas Health and Safety Code to: assure the perpetual maintenance of the city cemeteries; invest and reinvest money in trust accounts in the trust fund; and apply the income earned by PCTF that is in excess of the amount necessary to maintain the individual cemetery lots or graves to the beautification of the city cemeteries generally. Section 10-1-12 authorizes the city clerk and the cemetery administrator to prescribe rules regarding the administration of the trust fund and authorizes the city clerk, in consultation with the administrator, to determine the amount of money necessary for the permanent care and upkeep of individual graves or family lots and to accept such amounts. Section 10-1-13 through 10-1-18 concern the process by which a person may submit an application to act as trustee for the person or a decedent and pay a deposit into the trust fund. Finally, Section 10-1-20 requires the director of the Financial and Administrative Services Department to invest the money deposited in interest-bearing bonds or governmental securities, keeping the principal of the funds deposited intact as a principal trust fund. The cemetery administrator must first apply the interest, revenue, or other accrual or increase in the funds deposited for a specific cemetery lot, grave, or burial space to maintain that specific lot, grave, or burial space. However, the director may authorize the administrator to use any revenue that is greater than the amount necessary to accomplish the trust for a specific cemetery lot or grave to beautify the cemetery where the lot or grave is located. 

I and my sister-in-law Tina Huckabee have attempted to contact the city clerk multiple times both by e-mail and telephone to find out how to apply as a trustee for various family lots in the Austin Memorial Park graves, as well as the necessary amount of the deposit. We have not received a response to date. Subsequently, I filed a Public Information Request (PIR) with the city seeking all documents, memorandum, accounts, records, and information regarding the PCTF established pursuant to Section 10-1-11 et seq. of the Code from January 1, 1992, to date, including, but not limited to: any and all rules prescribed pursuant to Section 10-1-12; copies of all current and past written application forms prescribed by the city clerk pursuant to Section 10-1-13; all current and past amounts, and the dates thereof, determined by the city clerk as necessary for the permanent maintenance of a cemetery lot or burial space; the number of persons who have applied as trustees pursuant to Section 10-1-13 and the dates of said applications; the number of applications that have been accepted or rejected and the dates thereof, respectively; copies of all pages of the trust fund record book required pursuant to Section 10-1-19; and, an annual accounting of the trust fund of of December 31 of each year from 1992 to present, including the principal, interest earned, and all deposits and expenditures. 

In response to my request I have received a handful of disparate documents. Perhaps most significant are copies of documents I did not receive: no copy of the rules regarding the administration of the trust fund provided for under Section 10-1-12; no copy of the written application form to create a trust, even though Section 10-1-13 requires the city clerk to prescribe such a form; no copies of any certificate of acceptance that the city clerk must issue under Section 10-1-15 to persons depositing funds in PCTF; no copy of entries in the “permanent, bound record book” the cemetery administrator is required to keep under Section 10-1-19 for each deposit made to PCTF, including the name of each depositor and the name and location of the cemetery lot or grave subject to the trust; and no copies of any report required under Section 10-1-21, which provides that the “director of finance shall regularly report to the cemetery administrator the status of each trust account created under this article” and that the “administrator shall regularly report to the director the charges made to each trust account for perpetual care of a grave or burial space.” There were no documents regarding the number of persons who have applied as trustees or the number of applications that have been accepted or rejected. Perhaps most significantly, there is not a single document to show that PARD is in compliance with either the Code or state law, which expressly provides that interest from PCTF must be expended for the maintenance and care of thegrave, lot, or burial place for which the funds are donated and only then may any income or revenue that is in excess of the amount necessary to accomplish the trust be used to beautify the entire cemetery.

I did receive documents reporting significant funds in PCTF. According to the City Of Austin Comprehensive Annual Fiscal Report for the fiscal year ending September 31, 2016, PCTF has $1,000 categorized as “expendable” and $1,070,000 listed as “nonexpendable.” However, a separate “Permanent Funds Combining Balance Sheet” I received in response to my PIR shows that as of September 30, 2016, PFTC had assets of $1,011,000, with no expenditures. Curiously, despite this substantial amount, according to the document there was no interest earned. However, for the year ending September 30, 2015, the documentshows that PCTF, which began the fiscal year at $993,000, earned $18,000 in interest. There were also no expenditures. Similarly, for the year ending September 30, 2014, PCTF began the year with $1,394,000 and earned $12,000 in interest, but had expenditures of $394,000 for “Public recreation and culture.” There is no documentation that this substantial expenditure was spent in accordance with both city and state law, in that the funds were first expended specifically for the upkeep and maintenance of the grave sites for which the trusts were established and any excess funds were expended on the beautification of the cemeteries in which those graves sites are located. Further, there is some documentation that PARD has completely failed to comply with the Code and state law regarding PCTF. A May 31, 2017, memorandum from Liana Kallivoka of PARD to Anthony Gibson references a discussion to be held regarding PCTF. Among the topics to be discussed are whether PCTF can be dissolved and where does the interest earned from PCTF go. Ms. Kallivoka also states that a customer wants to turn over $10,000 fund to PARD for care of a family plot at Oakwood cemetery and asks how to handle this type of request. This memo appears to establish that: PARD has utterly failed to comply with the application process and record-keeping requirements of the Code regarding PCTF; PARD is illegally preventing citizens from contributing to PCTF in violation of both the Code and state law; PARD is failing to spend the income from PCTF to maintain specific graves sites and lots as required under both city and state law; and finally that PARD seeks to use, or possibly has already used, revenue from PCTF for purposes prohibited under both the Code and state law. 

Date(s) this occurred: From the date that the Perpetual Care Trust Fund was first established in 1990 to the present date.

Location(s) this occurred: Throughout the entire city cemetery system.

Why do you believe acted wrongly?: The city clerk and officers and employees of the Austin Parks and Recreation Department involved in the administration of the city cemeteries. 

Who else can support your description or provide additional information?: The Austin Parks and Recreation Department's response to my public information request regarding the Perpetual Care Trust Fund show a complete lack of vital documentation required under both city and state law, from applications to record keeping, thus establishing that the city clerk and that department are utterly failing to comply with the law regarding administration of said fund. Nor could the Parks and Recreation Department document in any meaningful way how revenues from the fund are expended and that such expenditures are in compliance with state and local law. My sister-in-law Tina Huckabee can also affirm that the city clerk has failed to respond to her multiple requests regarding how to become a trustee to the Perpetual Care Trust Fund.

==Documents==

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Subsequently I called the city clerk to sign up to speak at the May 10, 2018, hearing of the Austin City Council. I was asked if there is anything else that the office could help me with, I said I would like to talk to someone about being a donor to PCTF. I was subsequently directed to call Kimberly McNeeley, acting director, PARD, and we did have a telephone conversation. In an April 26, 2018, e-mail Ms. McNeeley stated that she “was able to meet with PARD team members who were most informed regarding this issue. Despite the knowledge in the room, there are a few team members I need to talk to outside of PARD regarding this subject. This process will require a bit more time. I fully intend to provide you a comprehensive response, and need additional time to gather information. Please stand by and I continue to update you regarding my progress until a comprehensive response is completed.” I responded that while I appreciated her getting back to me, I did not understand why this issue needed any further study, as Title 10, Article 2 (Perpetual Care Trust Fund), of the Code has been in effect since 1992, and sets forth in great detail the policies and procedures for implementing PCTF. I also stated that it was very clear to me that PARD has acted, and is acting, in violation of state and local law and its only possible response is to both immediately implement the city ordinance as intended and to fully account for every deposit to, investment of, and expenditure from PCTF over the past 26 years. Further, I stated that until PARD complies fully with both the state and local law regarding the PCTF, any action by PARD regarding changes to the cemetery rules and regulations should be put on hold, especially as to existing gravesite gardens and memorials, as any such rules and regulations must take into account and incorporate PCTF. Ms. McNeeley replied that “additional time is needed because . . . the city municipal code designates specific responsibilities associated with the perpetual care fund to various departments” and that in order for her “to provide a complete and comprehensive response to your inquiry, it is necessary . . . to consult with colleagues” outside of PARD. Ms. McNeeley stated that she was committed to giving me a response and that she would be in touch soon. 

On May 8, 2018, I received a response by Ms. McNeeley stating that she intends to “facilitate an operational review of the fund and establish clear administrative processes to allow for clarity in the Perpetual Care Fund’s purpose, administration and allowable uses.” She references issues such as historically deficient record keeping, failure to follow City code procedures, and the lack of structure for accounting of plot specific maintenance investments. Ms. McNeeley promises among other things, a full internal audit to account for records associated with PCTF investments, to revise Code provisions, and explore allowable options for cemetery maintenance to ensure efficient procedures and compliance with PCTF intent. She acknowledges that “this information may be disappointing,” but states that PARD “shares in the disappointment.” Ms. McNeeley states that “now that there is a full understanding of the challenges, PARD can work effectively to fix Code, procedures and fund administration to ensure effectiveness and efficiency in the future.” However, McNeeley also declares that “it is not appropriate to accept a donation to the perpetual care fund at this time. Upon completion of the above action plan, PARD and the City of Austin will be in a better position to accept donations.” There is no information regarding any schedule or timeline concerning the “action plan.” Considering that the revision of the cemetery rules and regulations, which initiated my research, has been delayed and dragged out by PARD for over four years, it is questionable whether PARD is going to be in compliance with state law or the Code regarding PCTF anytime in the foreseeable future. Further, PARD’s refusal to accept donations and implement trusts for specific gravesites is a blatant violation of both state and local law. The law is very clear concerning PARD’s current duties regarding PCTF and there is no legal doctrine tolling compliance with the law on the grounds that a public entity “needs to get its act together.”

It is a complete conundrum why PARD is acting as if it has never heard of PCTF before and cannot explain why it has failed to implement the Code or comply with state and local law since 1992. Not only as PARD been using PCTF for substantial, but undocumented, expenditures, there are documents clearly establishing that the City of Austin and PARD were well aware of PCTF and its history. A May 5, 1992, memorandum from Betty Dunkerley, director, Financial Services Department, to the Mayor and City Council sets out in detail the history of the “Cemetery Fund,” which incorporates funds placed in trust dating back to 1959. In a July 23, 1998, memorandum from John Greene, assistant city attorney, to John Stephens, City Controller, Mr. Greene discusses the history of PCTF. He clearly states that the City cannot terminate PCTF and use the corpus of the fund for general cemetery maintenance and upkeep and that proceeds from PCTF may be used only to maintain those specific graves for which the trust was created, with any excess revenue available for cemetery beautification. 

Yet, in a May 31, 2017, e-mail exchange between Liana Kallivoka, assistant director, PARD, Anthony Gibson, Controller’s Office, and Tonja Walls-Davis, Cemetery Manager, the parties were completely befuddled regarding how to handle a request by a citizen who wished to donate $10,000 for care of a family plot in Oakwood. Not only did they not know how to handle such a request, the first question from Ms. Walls-Davis was whether PCTF could be dissolved; she also asked “where does the interest earned from the Principal account go,” apparently unaware that PARD has been making substantial expenditures of these revenues for years. She cites the Texas statutes, but none of the parties seem to be aware of the PCTF provisions in the Code, which have been in place since 1992. Because the response to my PIR request appears to be incomplete, I do not know what actually followed, but the issue appears to have been unresolved, as an e-mail from Patricia Meaux, administrative supervisor, to Ms. Walls-Davis contains a June 8, 2017, e-mail from Mr. Gibson referencing the July 23, 1998, memorandum from Mr. Greene and stating that the $10,000 being offered to maintain eight family plots would have to be directed to the city’s legal department “because they would know the various laws surrounding the acceptance of such funds.” Again, no one seems to be aware that the provisions for PCTF are clearly set out in the Code. 

On May 10, 2018, I testified before the Austin City Council regarding PARD's blatant and continuing violation of both state and local law regarding PCTF and its apparent fraudulent misuse of PCTF proceeds and provided each member and the mayor with a binder contains extensive documentation. To date I have not received a response from a single elected city official.

In a July, 16, 2018, e-mail, Anthony Segura, Assistant Director, PARD, told me that PARD had met that day with the City’s Controller’s Office and and the legal department to discuss the PCTF. He stated that: "We are continuing our research and analysis and are planning on reconvening within the next 1-2 weeks" in order to give "additional time" for the legal department to continue researching current Texas statutes in relation to PCTF.  I responded on July 17, 2018:

I appreciate your keeping me up to date on this process, but I do not understand why so much research and analysis is needed. The relevant state statues, Section 713.001 through Section 713.007, Texas Health and Safety Code, have been in place since 1989 and except for a minor revision to Section 713.001 in 1993, have been unaltered. Sections 10-1-11, et seq. of the Austin Code of Ordinances (Code), which establishes the City of Austin Perpetual Care Trust Fund (PCTF) in accordance with the Health and Safety Code, have been in place since 1992 and follow the provisions set out under state law. The state and local law are established, clear, and unambiguous. There is no need to reinvent the wheel here. The problem lies not with the language of the law but the fact that the Austin Parks and Recreation Department (PARD) has made absolutely no attempt to implement it for some 26 years. Frankly, I do not see anything here that needs to be further analyzed. Instead of spending the next few weeks “researching the current Texas statutes” (which are pretty much the same as when they were enacted in 1989), PARD, the City Controller, and the legal department should be implementing the policies and procedures clearly set out in the Code. Of equal urgency, PARD must work with the city auditor to do a complete and thorough audit of the Perpetual Care Trust Fund, including tracking and accounting for all donations, investments, proceeds, and expenditures. In fact, I think this is of the utmost importance, as it is clear that the current administration of this fund is in blatant violation of both state law and the Code and has been for over two decades. Over a million dollars of trust funds are at stake and the longer resolution of these violations take, the longer PARD is acting in violation of state law and the more likely these funds are to be lost or misused. I wonder if PARD really understands the seriousness of this situation and the absolute need to begin finally complying with the law as soon as possible. As I have said before, there is nothing under Texas law tolling compliance with a state statute simply because a public entity needs to get its act together. PARD and the City have had 26 years to properly implement PCTF; what is needed now is not further research and analysis but immediate action.

Mr. Segura responded by e-mail the same day saying that PARD is "working on refining our internal processes in relation to" PCTF and "henceforth working with the Controller’s office and the Legal Department to ensure that we can utilize the fund accordingly." Segura stated that "PARD is working on challenges and recommended actions associated with" PCTF and that this "will require continued cooperation with multiple departments to resolve these issues and I can assure you we are working as diligently as possible to remedy these challenges." 

2019

February 26, 2019, I met with Keith Salas of the City Auditor’s Office after learning that the integrity violation complaint been dismissed (because the person who had investigated the complaint was no longer with the office, there was no information regarding why the complaint had been dismissed). I reviewed the material and documentation that I had compiled with Salas. Salas stated it was apparent that something was wrong and that he will reopen the investigation. I have heard nothing from the City Auditor's Office since then.

2022

On July 20, 2022, I  learned from a fellow stakeholder that PARD was making a presentation at the July 25, 2022, regular meeting of the Parks and Recreation Board (Board) to recommend that the Austin City Council to support an amendment to state law permitting the city to dissolve the PCTF and use the principal for general cemetery maintenance and capital improvements.

I appear at the July 25, 2022, hearing, only to learn that the item had been pulled from the agenda. I was still permitted to testify and distribute my binder containing my extensive research regarding the PCTF. I testify that I have analyzed city fiscal reports regarding the PCTF from 1991 through 2016. Under both state and local law, proceeds from the fund deposited for a specific burial space must first be applied to maintain that space. Any excess revenue may then be used to beautify the cemetery where the space is located. There is no other permitted use of this revenue. Yet, from 1991 through 2016, $2,216,255 of expenditures were made from the PCTF. There is no documentation showing that these expenditures were spent in accordance with city and state law. In fact, expenditures made from 2002 to 2014, were denoted only as “Public recreation and culture.” 

I also noted that in PARD’s presentation, which was posted online on the Board's website, basically admits that it has ignored state law and the city code, engaged in deficient record keeping, and failed to create accounting of investments. PARD further disingenuously claimed that there is a lack of understanding of the fund's intent and benefits, when the city code clearly states that the fund is to “ensure the perpetual maintenance of cemetery lots and graves.” I asserted that PARD sought to be rewarded for its decades of negligent, incompetent, and frankly criminal actions, by being allowed to drain the rest of the PCTF.  I urged the Board to order a thorough independent audit of PARD’s administration of city cemeteries and that PARD be required to finally properly implement the Fund.

August 8, 2022, I receive an email from Laura Cottam Sajbel, Chair of the Parks and Recreation Board, stating that after rescheduling the Finance Committee meeting to take up the matter of the PCTF for the following week, next week, PARD notified the Board that it had decided against pursuing the PCTF measure.

I responded that same day, thanking Cottam-Sajbel. for getting back to me. I told her that I had been prepared to appear before the Finance Committee with additional information, as I had analyzed the city fiscal reports regarding the PCTF from 2017 through 2021. I discovered that there had been no expenditures from the PCTF since 2016; however, despite the fact that there has been $1,011,000 in the PCTF since 2015, there has been no reported revenue from 2016 through 2021. I explained that under both state and local law, the PCTF is supposed to be invested in "interest-bearing bonds or governmental securities.” Referring to the binder that I had presented to the Board on July 25, 2022, in each year from 1991 through 2015 (there was no clear information for 2001), there was reported revenue, for a total of $2,252,126. Most significantly, in 2015, there was a total of $1,011,000 in the fund and a reported revenue of $18,000. Yet, despite the fact that the same identical amount has been reported in the fund from 2016 through 2021, the fund allegedly has not generated a penny of revenue. I stated that I did not find tis to be feasible. I noted that nothing in the fiscal reports sets forth where and how the PCTF is invested. 

I again urged an immediate and thorough independent audit of PARD’s administration of the PCTF, including accounting for all revenues generated from 1991 through 2021, who authorized the expenditures of over $2 million from 1991 through 2016 and detailing what the monies were used for, how the PCTF has been invested, and why it has failed to generate any revenue since 2016. I also asserted that PARD must be required to take immediate steps to implement the PCTF in an open and transparent manner pursuant to state and local law. I noted that I first became involved in the issues regarding the PCTF in 2017 when I tried to donate money for perpetual care of my parents’ gravesites and my own plot and my sister-in-law tried to do the same for her daughter's gravesite. I stated that if the PCTF was implemented in a trustworthy manner with proper accounting, I and my sister-in-law would be among the first to donate to it. Properly managed, the PCTF could be a continuous source of revenue to help maintain Austin cemeteries. I ended by stating that it is time for PARD to do what it should have done some 30 years ago, which is implement the PCTF as required by state law and the city code.

Cottam-Sajbel responded the same day that the Board and PARD need to look into the apparent lack of interest earned by the fund, which she agreed was significant. 

August 11, 2022, Cottam-Sajbel contacted me via email informing me that the Finance Committee was unable to make a quorum for its August 15, 2022, meeting, but that the Committee would be examining issues regarding the of funding for cemeteries and the proper use of the funds in at its September meeting. She told me that Mr. Patrick Moore will the new Committee chair.

I respond the same day thanking her for keeping me up to date on this issue. I stated that have done a lot of research regarding the PCTF and would be willing to assist or serve on any working group or committee regarding the PCTF, as well as testifying before the Committee if requested.

August 12, 2022, Cottam-Sajbel responds that she will forward his information to Moore.