Ms. D’Anne Williams:
I have been involved in the cemetery rules and regulations revision process since October of 2013. This process has been going on for over four years, all solely due to delays imposed by the Austin Parks and Recreation Department (PARD); I am attaching a copy of a timeline of the controversy to this letter. I do not understand why the sudden rush by PARD to finalize the rules or why review and discussion of an issue that is so important to so many members of the public is limited to a single month during a time when many stakeholders are celebrating the holidays or are out of town. I am also still waiting for documents I have requested from the City of Austin pursuant to the Texas Public Information Act (Chapter 552, Texas Government Code) and reserve the right to amend these comments as I receive more information. In this letter I will set out my objections to the proposed rules and end with suggestions to reasonably resolve this controversy.
Austin City Council, not the Austin Parks and Recreation Department, has the sole authority to amend and approve rules regulating the cemeteries
On May 28, 1978, the Austin City Council enacted rules and regulations for all cemeteries owned and operated by the City of Austin. The resolution expressly reserves to the City Council the “right at any time and from time to time to change, amend, alter, repeal, rescind, or add to these rules or regulations or any part thereof or to adopt any new rule or regulation or any temporary exception with respect to said cemetery or anything pertaining thereto.” These said rules and regulations are substantially identical to the current cemetery rules and regulations. In fact, the rules and regulations published by PARD on its website include this language reserving to the the City of Austin the authority to revise and amend the rules and regulations. Therefore, only the Austin City Council has the authority to revise to amend the current rules and regulations. Not only does PARD lack the express authority to enact new rules, the rules proposed by PARD conflict with or needlessly duplicate the existing rules and regulations enacted by the City Council. While PARD could propose new rules, only the City Council has the express authority to enact them. PARD has no authority to enact completely new cemetery rules and regulations on its own and any such rules and regulations proposed by PARD must be submitted to the City Council for review and enactment, including comment and debate at public hearings. Any rules or regulations PARD attempts to enact without City Council approval would be invalid and and any attempt by PARD to enforce such rules would be void and illegal.
Neither the City of Austin or PARD has the legal authority to retroactively enforce current the rules or regulations or impose new rules or regulations regarding existing grave site memorials and gardens.
I have made several extensive requests under the Texas Public Information Act (PIA), including any and all documents regarding the implementation and enforcement of the existing cemetery rules and regulations. This included any documentation regarding making such rules and regulations readily available to the public and to stakeholders purchasing grave sites and actions taken to enforce these rules and regulations. Not a single document I received under PIA showed that PARD had made any attempt following the enactment of the rules and regulations in 1978 to publicize these rules. There was no evidence that PARD had ever provided a single pamphlet, brochure, contract, or any other document setting forth these rules to any person purchasing a grave site within a cemetery operated by PARD. My brother, Steven Weintraub, and his wife, Tina Huckabee, purchased a grave site for their daughter Shoshana in 2006. My family has purchased five sites, one for my father, Russel J. Weintraub, interred 2012, one for my mother, Zelda K. Weintraub, interred 2015, and sites for my brother, my sister-in-law, and myself. PARD never provided to any member of our family at any time a document or pamphlet setting out the cemetery rules and regulations. I also note that these rules and regulations are not included in the City of Austin Code of Ordinances, this is significant for two reasons: first, the said ordinances would be the most logical and readily accessible resource for a citizen trying to determine if there were rules and regulations regarding grave site memorials; and second, these existing rules and regulations are not ordinances, lacking the authority of law, and therefore can be waived by failure of the City of Austin or PARD to timely enforce them. Having failed to publicize or enforce these rules and regulations for over three decades, despite open, obvious, and continuing violations, PARD has effectively waived such rules and regulations and no longer has any legal right to try to retroactively enforce them. Nor does PARD have any authority to impose new rules on existing grave site memorials and gardens to the extent such new rules and regulations would force the entire or substantial removal of existing memorials or gardens. It is well established under law that when a city enacts a ordinance, law, rule, or regulation that significantly affects the enjoyment or use of an existing property or business, that existing use must either be grandfathered for as long as the initial use continues or the city must fairly compensate the the property holder for the loss of the value or use of the property. In this case, any existing memorials or gardens must be grandfathered as long as the initial use continues; PARD would be able to impose the new rules and regulations once the site holder failed to maintain the initial use, such as abandoning and substantially failing to maintain the grave site.
The City of Austin and PARD have failed to publicize or enforce the rules and regulations from the day they were enacted in 1978 until late September of 2013. According to the documents I received through the PIA request, there were no documented attempts by PARD to enforce the regulations for decades—there was not a single enforcement letter, notice, or any other document prior to September 13, 2016. The only documentation of any attempt to enforce the rules and regulations by PARD were two tables, a 2016 Violations Database and a 2017 Violations Database, running from September 13, 2016, through November 9, 2017. Of the 11 alleged violations in 2016, the record showed that PARD only attempted twice to contact the site holder. Of the 46 alleged violations in 2017, PARD only contacted a single site holder. It is also relevant to note that the majority of the alleged violations are reported in clusters: two on March 20, 2017, 11 on May 3, 2017, three on May 26, 2017; five on May 30, 2017; two on June 9, 2017; two on August 8, 2017; two on September 6, 2017; two on October 25, 2017, and two on November 9, 2017. It is interesting that after 38 years suddenly PARD is preoccupied with documenting alleged violations. It appears that PARD is attempting belatedly to create a paper trail to cover up its over three decades of neglect. PARD’s failure to make any attempt to enforce the rules and regulations for 38 years effectively waives such the rules and regulations and they cannot be retroactively enforced.
Not only has PARD failed to enforce the rules and regulations, for over three decades it has both implicitly and expressly authorized stakeholders to create memorials and gardens on grave sites. My 13-year-old niece died suddenly of myocarditis on April 28, 2006, and she was interred at Austin Memorial Park (AMP). My sister-in-law subsequently noticed tire tracks on her daughter’s grave from maintenance equipment, which she found emotionally distressing and demeaning to the memory of her daughter. Huckabee is a master gardener who specializes in native and xeriscape 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 number of native or nativized plants, including oxblood lilies and purple coneflowers, which have continued to thrive and bloom, adding color and greenery even during the summer when, because of drought and watering restrictions, the surrounding grounds were dead, brown, or bare. When my father was buried in 2012 we requested that AMP personnel not place sod on his grave and instead we outlined his grave with with stone. When my mother was buried in 2015 next to my father, PARD did not place any sod on her grave and instead my family extended a border of cut stone to embrace both parents. Not only do we have these personal examples of PARD implicitly permitting memorial gardens, we know of one instance in which city personnel not only expressly gave permission for a memorial garden, but actively assisted the person in measuring out the space.
We have been told by PARD personnel that this implicit and expressed permission was given by PARD’s contractor, not PARD. According to the documents I received via my PIA request, beginning October 3, 1990, PARD contracted with Intercare Corporation for the management and operation of the city cemeteries. This contract was extended multiple times, PARD finally ending its contract and assuming control and operation of the cemeteries in April of 2013. Under the contract, Intercare was granted by PARD the control and operation of the cemeteries. Intercare therefore was PARD’s authorized agent and had express, implied, and apparent authority regarding permitting grave site memorials and gardens. PARD, through its own omissions and inaction, made no apparent attempt during the 23 years it contracted with Intercare to require that Intercare publicize and enforce the cemetery rules and regulations. It is well established under law that a principal is wholly liable for an agent’s actions if the principal ratifies, accepts, or adopts the agent’s acts, either expressly by otherwise accepting the results of said actions, including through the principal’s inaction or silence. Further, under law, a third party may rely in good faith on the representation by an authorized agent. Therefore, under well- established legal principles, Intercare was without doubt PARD’s authorized agent for the operation and maintenance of the cemeteries through 2013, site holders had every legal right to rely on Intercare’s expressed and implicit permission regarding grave site memorials and gardens, and PARD, through its silence and inaction, ratified Intercare’s actions. PARD cannot escape the fact that for over three decades persons were allowed without interference to create grave site gardens and memorials by trying to place the blame on its own contractually authorized agent.
Further, PARD has no moral or ethical right to retroactively enforce either the current or new rules and regulations on existing grave site memorials and gardens. Such attempts by PARD would arbitrarily punish those Austin citizens who in good faith relied upon the acts and omissions by Intercare and PARD and created grave site memorials and gardens, many of which have been in place for years, if not decades. These grave site memorials and gardens were created by families and friends as part of the mourning process and were created to reflect the personality of the departed. Forcing the removal or destruction of these personal tributes will cause tremendous and unnecessary grief. Austin citizens should not suffer because of PARD's neglect and dereliction of its duties.
I want to emphasize that I am not saying that site holders should be able to place anything on a grave site. I fully accept the need for reasonable rules and regulation to apply to all future grave sites. I also acknowledge that PARD has the existing right to remove any items that present an imminent danger to public safety, that are broken or deteriorated, or encroach on public ways or other grave sites. However, PARD does not have the right at this point to interfere with any existing gravesite memorial or garden until the memorial or garden is abandoned. PARD has the legal duty and moral obligation to grandfather in existing memorials and gardens, but is free to work in good faith with the site holders to try to reach reasonable resolutions of issues.
The Austin Parks and Recreation Department has absolutely failed to comply with the City Council resolution enacted October 17, 2013.
On October 17, 2013, I and other members of the public appeared at the meeting of the Austin City Council to protest the sudden declaration by PARD that it would be enforcing long- neglected cemetery rules. We asserted that the regulations needed to be revisited and revised and that the public and stakeholders must be involved in developing reasonable alternatives, balancing the rights of families and friends to uniquely honor their loved ones and the need to maintain cemetery grounds. We also noted that there was no urgency, as PARD already had the authority to remove any neglected or abandoned memorials and dead flowers and shrubs. In response to our concerns, the City Council enacted a resolution requiring the City Manager, in collaboration with stakeholders and a working group of the Parks and Recreation Board, to evaluate whether current cemetery policies related to grave ornamentation were appropriately sensitive to personal and cultural expressions of grieving, while preserving necessary safety for cemetery workers and respect for the values of all families. This process was to be completed over six months.
As can be seen from the attached timeline, PARD has utterly and willfully failed to comply in any way with the City Council resolution. At no time was the City Manager involved and members of PARD have refused any direct discussion or negotiation with the public or stakeholders. Not once were the stakeholders ever actually allowed to sit down at the table with PARD and work together on some sort of reasonable compromise, which was certainly what was envisioned in the original City Council resolution. Following the city council resolution, at PARD's quarterly stakeholders meeting on October 24, 2013, we were told that PARD was developing a process to come up with the new rules for the cemetery within a week to 10 days and that interested parties would be informed then how they could participate in the process. On November 15, 2013, stakeholders were informed by PARD that it was drafting the meeting schedule and work plan for the public comment portion of this process and engaging a facilitator to coordinate the stakeholder meeting, but, because of the upcoming holidays, these stakeholder meetings would not begin until after January 1, 2014. During the quarterly cemetery stakeholders meeting on January 30, 2014, it was announced that that the attempt to hire a neutral facilitator for the review had fallen through and that PARD was going to put out a request for bids for such a facilitator.
On January 27, 2014, I e-mailed a very rough draft of proposed regulations to Patricia Jacobson of PARD, explaining to Ms. Jacobson that I was concerned because three of the six months allotted to process of developing a compromise on the current regulations had already passed and I thought at least we could begin with something on the table to discuss. Subsequently, I sent several requests regarding the status of the appointment of such a facilitator. On February 27, 2014, I received the following reply: "Quick email regarding the status of the Cemetery Rules Update process. We will release the Request for Quote (RFQ) for facilitation services today with the close next Friday. We will quickly then review and hopefully select a facilitator within the next week to begin the process. I regret that it’s taken this long, but we’re now ready to move forward."
It was not until April 29, 2014, when PARD finally announced that it had retained Smith and Associates to provide facilitation services and coordinate updating the rules and regulations. Interested parties were urged to provide feedback by commenting via the survey posted on Speak Up Austin, which would not be ready until May 1, 2014, or by participating in one of the open house meetings taking place in May. The open houses were not scheduled until May 20 and May 21, 2014. The open houses turned out to be nothing more than an opportunity to meet various employees of Smith and Associates and to answer the same survey questions that appeared on the Speak Up Austin survey. However, stakeholders were informed that the initial presentation of the recommended rules and regulations would take place June 5, 2014, and that the final presentation would be on June 18, 2014.
The subsequent interactions overseen by Smith and Associates were a series of on-line surveys and a handful of meetings that were little more than allowing stakeholders to respond to such surveys, with PARD and Smith and Associates controlling all discussions. The resulting proposed rules and regulations published by PARD and its consultants were supposed to be presented to the PARD board for approval on July 22, 2014. I and other stakeholders planned to appear at that meeting and protest not only the process by which the rules and regulations were developed, but many of the specific proposals as well. That meeting was canceled and the stakeholders were later told that instead the rules and regulations would be developed as part of the Cemetery Master Plan. I must note, that according to documents I received through my PIA request, Smith and Associates were paid at least $32,920.92 for this failed and pointless endeavor. However, during the 2014 meetings, Cemeteries Manager Gilbert Hernandez told stakeholders that PARD had paid Smith and Associations a total of $125,000.
I subsequently contacted PARD multiple times regarding the status of the rules and regulations revision, and was always told that PARD was focused on the Master Plan, but would be returning to the rules and regulations process when the Master Plan was completed. However, many months later, when the draft of the Master Plan was made public, I contacted PARD and was informed that there would be an update on the process "very soon.” There was no further action by PARD until October 27, 2016, when it reinitiated the rules and regulations process. At that meeting the public was told, much to their anger and dismay, that PARD did not have to have City Council approval of the proposed rules and regulations and that PARD would have new rules and regulations in place by January of 2017.
However, again there was no action on the part of PARD until April of 2017, when it announced it had partnered with Conservation Corps “to facilitate the dialogue with the community regarding how to best update the Cemetery Rules.” These meetings took place April 10, 18, 25, 26, and 27, 2017. I attended several of these meetings. Each time there was no representative from PARD attending and only a single facilitator from Conversation Corps who had no background or knowledge of the history of this issue. The meetings were not recorded, there are no transcripts of these meetings, and the facilitator appeared to take minimal, if any, notes.
There was no further action from PARD until it announced in October 2017 that it would be posting draft cemetery rules and regulations and that there would be only two community meetings, October 23 and 26, 2017, to discuss the proposal. I was not able to attend either meeting as I had an out-of-town trip. I requested a copy of the proposed rules on both October 11 and 19, 2017, but they were not forthcoming.
This entire process demonstrates the typical pattern for PARD, long delays with little or no communication with the public interrupted by a handful of hastily called public meetings with no meaningful discussion or negotiation, and then PARD trying to rush through rules and regulations that clearly were drafted with little thought or concern for the public or stakeholders. PARD should not be allowed to flout the City Council resolution. This entire process must be put on hold until PARD finally agrees to end its bureaucratic delay and equivocations and meet face to face with the public as intended by the City Council.
PARD failed to properly notify the public and stakeholders of the comment period and deadline, including providing an invalid e-mail address for public comments.
As further evidence of PARD’s attempts to completely avoid public participation, PARD’s own website is completely silent regarding the comment period for the rules and fails to set forth the deadline for comments. A member of the public wishing to comment on the rules will find only a link to the proposed rules and instructions: “For more information about public input on Cemetery Rules & Regulations, please contact cemeteries@austintexas.gov." It would have been extraordinarily simple thing for PARD to post notice of the comment period and the deadline on its website and its failure to do so underscores PARD’s complete lack of transparency and engagement in this process. Only those who have been involved in the process from the beginning and are on PARD’s e-mail list have received actual notice of the deadline. PARD’s e- mails inform this small select group of stakeholders that their comments on the draft cemetery rules must be emailed to D’Anne Williams at Danne.Williams@austintexas.gov. by January 11, 2018. However, using the link provided by PARD to send an e-mail resulted in an automatic response stating that the message could not be delivered because the address is invalid and that this is a permanent error. In other words, not only has PARD failed to properly notify the public at large about the comment period and deadline on its own website, PARD’s notice to those on its e-mail list directs comments to an invalid e-mail address link and this has persisted through the entire comment period. PARD did not correct the link until January 10, 2018, only one day before the end of the comment period.
The only other public notice I have seen is a single small sign posted at AMP (a photograph of the sign is included). The sign references a URL, http://austintexas.gov/cityclerk/notices/ occ_notices.htm," which opens a website entitled “View Land Development Rules Notices posted on or after January 1, 2016.” However, nothing in that page refers expressly to the proposed cemetery rules and regulations. Instead, the link to the proposal is entitled “Notice of Proposed Rule - Rule No. R161-17.17 (Received 12/11/2017).” Yet, the sign fails to include the proposed rule number. A citizen wishing to make public comment and unaware of the rule number could reasonably assume that the posted URL is incorrect and thereby be discouraged from making public comment. Further, the sign states that the public comment period is from “December 12, 2017—January 12, 2018.” However, the e-mailed notices I have received from PARD state that the notice period ends January 11, 2018. This is contradictory and confusing; a citizen depending on the sign may actually miss the comment period by a single day.
These facts demonstrate PARD’s refusal to engage in an open and transparent public process and a complete lack of good faith on its part. PARD’s own actions call into question the legitimacy of the process and the draft rules. As a department of the City of Austin, it is both illegal and unethical for PARD to deny the public input in negotiating and commenting on the cemetery rules and regulations. After such blatant malfeasance by PARD, any actions by PARD at this point to finalize cemetery rules and regulations are completely illegitimate, invalid, and of questionable legality.
The proposed rules violate federal law.
Section 14.4.12 (General Regulations)(D)(Ornamentation and Decoration) of the proposed rules provides that:
(1) A person may not place any object, including ornaments, decorations, furniture, plants, or signs, in a cemetery that is not specifically permitted under these rules.
(2) The Cemetery Administrator may remove any object in a cemetery that is not specifically permitted under these rules.
(8) An ornament or decoration is permitted in a space if: (a) Placed on a memorial; (b) No longer than six inches in any dimension; and (c) The ornament or decoration will not interfere with mowing or other cemetery maintenance.
Under 14.4.3 (Terms; Definitions), “Memorial” is defined any marker, monument, headstone, tablet, or other structure on or in any space for identification or in memory of the individual(s) interred there. This definition is confusing, because it is unclear whether “Memorial” applies to just the headstone or other marker or to the entire grave site, which could be defined as a “space. . . in memory of the individual(s) interred there.” It is a tradition in the Jewish tradition to 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. Up until now this has never been an issue; no document I received through the PIA request discusses or mentions the stones left at Jewish grave sites. However, if the proposed rules are interpreted in the strictest sense, then the stones could only be placed on the headstone itself and all other stones would not only be prohibited, but would be subject to removal by the Cemetery Administrator. This would be a blatant violation of Jewish tradition and a desecration of Jewish resting places. 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 parks and imposing any new regulation prohibiting Jewish citizens placing stones on graves when there has been no such limitation before and authorizing public employees to remove stones from Jewish graves clearly discriminates against the Jewish citizens of Austin. Barring Jewish visitors from engaging in this long established ritual will not only make Jewish citizens feel unwelcome in a public cemetery but could result in Jewish families refusing to bury their loved ones there or even moving current burials to a more welcoming venue. It is also possible that a stringent and narrow interpretation of this proposed rule could violate the religious beliefs or traditions of other religious or ethic groups.
The proposed rules and regulations do not address alleged issues regarding non-weather- proof or unsafe grave decoration and fail to address existing grave site memorials or gardens.
In October of 2013, I and other stakeholders were told that PARD wanted to enforce the rules and regulations in part because of concerns regarding public safety. We were told that people were leaving dangerous, deteriorating, or inappropriate items on graves, including non-weather- proof items as clothing and paper, glass or other breakable items, items that could blow away or fall over, or items such as cigarettes or alcohol. However, under that proposed rules, any item can be placed on the “memorial” as long as the item is no larger than six inches square. This means cans of beer, packages of cigarettes or cards, paper and books, fragile figurines, and a wide variety of items can be left on the memorial. There is not even any requirement that the item be anchored or otherwise prevented from blowing, falling, or rolling off the memorial. The entire rule, after over four years of wrangling and delays, appears completely arbitrary and pointless.
Further, the proposed rules do not even address the issue of existing gardens and other grave site memorials that have remained in place for years (in some cases decades). As set forth above, PARD does not have the legal, much less moral or ethical, right to impose the existing or proposed rules on existing memorials and gardens. At this point in time, the vast majority of the memorials and gardens cannot be removed without significantly damaging or desecrating the graves. There are no provisions protecting or grandfathering in pre-existing memorials or requiring PARD to work with space holders to bring such sites within compliance. Further, there are no provisions requiring the publication and distribution of the regulations to avoid future conflicts. We are basically at the exact same place we were over four years ago. Existing grave site memorials must be grandfathered and addressed on a case-by-case basis.
Further, if PARD is going to illegally attempt to enforce these proposed rules on existing grave sites, how is it planning to do so? Throughout the Austin cemetery system there are hundreds, if not thousands, of grave site memorials or gardens that do not comply with the proposed rules. Is PARD willing to redirect its limited employee resources from regular and much needed maintenance work to dig up benches, stones, curbing, trees, and plantings throughout the entire cemetery system? Many of the memorials and gardens have been in place for years and cannot be removed without substantially destroying or desecrating much of the grave site, leaving gapping holes, trenches, and exposed soil. And throughout the cemetery system there are hundreds of such existing gardens and memorials. Is PARD willing to sustain the public outcry that will follow when families start posting pictures of desecrated graves, destroyed memorials, and torn up gardens to news organizations and public media? Is PARD willing to provide the substantial materials, resources, and city employees to remove such memorials and to then immediately repair, fill-in, level, sod, water, and maintain these grave sites? Or are families and friends going to be forced to visit and watch the desecrated graves erode and deteriorate? Looking at the current and significant maintenance issues at AMP, such as the rusting and collapsing fence, dead and neglected trees, and pot-holed roads, it is very clear that PARD already lacks the resources to even minimally maintain the cemeteries.
PARD does not have the funds or resources to currently properly maintain the cemeteries and the cemeteries are not economically or ecologically sustainable.
One argument PARD has made regarding the need to implement new cemetery rules and regulations is that the memorial gardens interfere with mowing. This is rather odd, because many of the gardens have been in place for decades and mowing does not appear to have been an issue until October of 2013. Prior to that, Intercare appears to have had no issues regarding mowing or memorial gardens. PARD personnel have told stakeholders that they need to be able to drive through the cemetery on large riding lawnmowers. The fact is that for most of the year, there is nothing to mow, especially during the recent droughts and watering limits, and even when there is rain, most of the greenery is weeds, with large existing bald areas. For all the years I have visited AMP there has never been a lush rolling grassy lawn and there is never going to be. The existing grass lawn is not economically or ecologically sustainable and the use of large heavy mowing equipment will only further erode and destroy what little top soil remains. Further, extensive use of heavy maintenance equipment will result in the same problem that drove my sister-in-law to plant a memorial garden on her daughter’s grave in the first place—tire tracks and ruts left over the graves by maintenance equipment. Instead of worrying about lawnmower access, in the changing environment PARD needs to look at innovative, ecologically sustainable ways to maintain the cemeteries, such as xeriscaping and the extensive use of drought resistant hardy native plants. Frankly, looking at the condition of AMP, with its sagging rusting fence, multiple dead trees and limbs, collapsed and leaning memorials, and cracked and pot-holed roads, mowing is the least of PARD’s worries when it comes to maintenance.
Further, it is my understanding from the many meetings I have attended, the only income that PARD receives through the cemeteries is from the sale of grave sites and burials, and that these funds are insufficient for even the most basic upkeep of the cemetery system. Even though PARD has recently increased the cost of burial sites, clearly the cemeteries are going to continue to lose income. First, over time as the cemeteries fill up there will be fewer available grave sites for sale. Ironically, more individuals throughout the country are eschewing the traditional burial, opting instead for alternatives seen as both more economically and environmentally sustainable, such as cremation and “green burial.” This means that in the future there will even fewer customers willing to purchase a costly traditional grave site and thus less revenue for PARD.
Without significant appropriations from the City of Austin, it is clear that PARD will continue to struggle for funds necessary for maintaining the cemetery system.
Implementation of a cemetery trust to allow citizens to fund the perpetual care of grave sites can provide significant funding for PARD, as well as provide for a more ecologically sustainable and attractive cemeteries. Austin has in fact implemented such a trust.
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 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 must be used 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. Finally, Section 713.006 (Tax) not only authorizes a municipality acting as a trustee under Section 713.002 to make appropriations from the municipality's annual budget for cemetery maintenance, but further provides that a municipality may impose a tax on all property in the municipality in an amount not exceeding five cents for each $100 valuation of the property for maintenance of the cemetery.
It appears the the City of Austin has indeed implemented such a trust pursuant to the Texas statutes. Section 10-1-11 of the Austin Code of Ordinances establishes the City of Austin Perpetual Care Trust Fund is established 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 Trust Fund 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.
I have 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 the lot belonging to me, and the necessary amount of the deposit. I have not received a response to date. Subsequently, I filed a PIA request with the city seeking all documents, memorandum, accounts, records, and information regarding the City of Austin Perpetual Care Trust Fund 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 the trust fund of of December 31 of each year from 1992 to present, including the principal, interest earned, and all deposits and expenditures. I have not yet received any documents.
I would be more than willing to pay into such trust for to preserve and care the grave site garden for my parent’s graves. Properly administered, such a trust could not only resolve issues regarding the grandfathering of existing grave site memorials and gardens, but could provide much needed funds to PARD for maintaining and beautifying the cemeteries as a whole. Further, PARD, working with stakeholders, could come up with reasonable rules and regulations that would permit the creation of gravesite gardens if the site holder has applied to the trust and deposited the requisite amount. Not only would this create additional funding for PARD and incentive for site holders to become trustees, it would allow family members and friends to create gardens in memory of their loved ones that could not only beautify and preserve the uniqueness of the City’s cemeteries, but would be far more economically and ecologically sustainable. For example, PARD could allow the installation of gardens over graves, but expressly require that all plantings must be drought- and freeze-resistant, native or adapted, low- or no-maintenance, and be selected from plants recommended by the City of Austin's Grow Green Native and Adapted Landscape Plants guide. Further, PARD could issue guidelines limiting the size of plants, and barring certain types of plants, such as those with with thorns or nettles, invasive or non-adapted plants, or plants that can spread through a rhizome or root systems, and setting out the type and height of any border or container. As I noted earlier, the garden on my niece’s grave has added color and greenery to the cemetery even when surrounding grounds were brown and bare. I have planted a garden on my parents’ graves using plants recommended by Huckabee, which included hardy and drought-resistant Engelmann's daisies with bright yellow blooms and beautiful evergreen leaves, pink and purple skullcaps, and a blue twist leaf yucca. Not only did these plants remain green all summer, the daises and skullcaps brightened the area with their flowers. The plants were specifically selected to be compact and will not spread or grow outside of the boundaries of the graves.
During the various hearings regarding the rules and regulations over the years, one issue that has come up is the lack of benches or other seating, even through the cemeteries are public parks. This is especially important, because many elderly or disabled persons visit the cemeteries regularly. One way to resolve this would be to allow trustees to make deposits to the trust fund specifically for the purchase by PARD of a bench dedicated in memory of a specific individual. PARD would then use income from the trust to purchase the bench. This method of funding could be used in a number of ways to maintain and beautify the cemeteries, such as allowing trustees to make deposits to purchase trees or stepping stones in memory of a deceased family member or friend.
Summary
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 be able to sit down at a table 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. All the delay in the process has been due to bureaucratic foot-dragging, equivocation, and utter lack of transparency by PARD and its refusal to comply with that resolution. These latest proposals are just further evidence of PARD’s absolute lack of good faith and its failure to truly engage with the stakeholders or the public.
Despite over four years of surveys, meetings, and comments, PARD has clearly failed to work with or to listen to the public or stakeholders. This process has been a complete waste of stakeholder time and taxpayer funds (for example, the over $32,000, and possibly as much as $125,000, paid to Smith and Associates). Further, the rules do not even address PARD’s supposed initial concerns regarding deteriorating or allegedly dangerous or inappropriate grave ornamentation, as under the proposed rules, any item can be placed on the “memorial” as long as it is no larger than six inches square. They also fail to address issues regarding existing grave site memorials and gardens.
In summary, after over four years of bureaucratic stonewalling, costly “consultants,” meetings, surveys, and comments, PARD has not only completely failed to work with the stakeholders to address the issue that ignited this entire controversy, it has failed to comply with the October 17, 2013, City Council resolution. If anything, PARD’s four years of delays and obstruction has made the problem even worst. The memorial garden over my niece’s grave has now flourished for over a decade. My father has rested in AMP since 2012 and when my mother passed away in 2015 we extended the original stones outlining my father’s grave and his memorial garden to encompass my mother’s grave, so that my father and mother are again united.
One other thing is also clear—if PARD approves the proposed rules as they now exist and continues to ignore the issue of existing memorial gardens, we will once again appear before City Council, testifying in great detail how PARD has willfully ignored the council’s resolution and significantly wasted both taxpayer time and resources. This time, it may also be necessary for I and other stakeholders to consider legal redress.
Timeline
In September of 2013, my sister-in-law Tina Huckabee, heard a rumor that the Austin Parks and Recreation Department (PARD) had plans to enforce rules regarding Austin Memorial Park (AMP) and would giving families only 30 days to remove grave site gardens, plantings, and other decorations, many of which had been in place for years. Huckabee contacted PARD on September 8, 2013, and was subsequently informed by PARD that beginning October 1, 2013, PARD would be identifying graves that were not in compliance to the rules and regulations and requiring families to bring these graves into compliance. She was also told that PARD had assumed cemetery management on April 1, 2013, and prior to this, a contractor had managed cemetery operations.
On October 17, 2013, I and a number of other members of the public appeared at the meeting of the Austin City Council to protest the sudden declaration by PARD that it would be enforcing long-neglected cemetery rules. We asserted that the current regulations, which had not been revised, publicized, or enforced since the 1970s, needed to be revisited and revised and that the public and stakeholders must be involved in developing reasonable alternatives, balancing the rights of families and friends to uniquely honor their loved ones and the need to maintain cemetery grounds. We argued that grieving families should not be forced to dismantle grave site memorials, many of which have been in place for years, simply because PARD had failed to fulfill its duties. Further, we stated that for PARD to retroactively enforce such regulations would arbitrarily punish those with family and friends memorialized at AMP, and that these citizens should not suffer because of the city's neglect and dereliction of its duties. We also noted that there was no urgency, as PARD already had the authority to remove any neglected or abandoned memorials and dead flowers and shrubs (a copy of my testimony submitted to the City Council follows at the end of this e-mail). In response to our concerns, the City Council enacted a resolution requiring the City Manager, in collaboration with stakeholders and a working group of the Parks and Recreation Board, to evaluate whether current cemetery policies related to grave ornamentation were appropriately sensitive to personal and cultural expressions of grieving, while preserving necessary safety for cemetery workers and respect for the values of all families. This process was to be completed over six months.
Following the city council resolution, at PARD's quarterly stakeholders meeting on October 24, 2013, we were told that PARD was developing a process to come up with the new rules for the cemetery within a week to 10 days and that interested parties would be informed then how they could participate in the process. On November 15, 2013, after repeated requests by various interested persons, including me, we were informed by PARD that it was drafting the meeting schedule and work plan for the public comment portion of this process and engaging a facilitator to coordinate the stakeholder meetings to ensure effective and transparent public participation. However, we were told that because of the upcoming holidays, these stakeholder meetings would not begin until after January 1, 2014. During the quarterly cemetery stakeholders meeting on January 30, 2014, it was announced that that the attempt to hire a neutral facilitator for the review had fallen through and that PARD was going to put out a request for bids for such a facilitator.
On January 27, 2014, I e-mailed a very rough draft of proposed regulations to Patricia Jacobson of PARD (a copy is included at the end of this e-mail). I explained to Ms. Jacobson that I was concerned because three of the six months allotted to process of developing a compromise on the current regulations had already passed and I thought at least we could begin with something on the table to discuss. In these proposals, I tried to preserve the long-established tradition of individualizing grave sites, as well as balance the right of certain religious groups to practice their traditions and the need for families to mourn and memorialize their loved ones, with PARD's need to maintain the cemeteries. To that end, I proposed limits on the type, size, weight, number, and materials of items to be placed within a space or on a grave. Certain items, such as items with political statements or offensive language, non-weather resistant items, and bird baths and bird feeders, would be barred. The proposals made it clear that the space holder was responsible for maintaining any items or plantings within the space. However, the regulations also provided a simple process allowing PARD to remove noncompliant items. The proposals also clarified that PARD had the right to remove any dangerous or neglected materials without notification. Although the regulations grandfathered in existing grave site memorials within their allotted space, the proposed regulations also encouraged PARD to work with space holders to bring such sites within compliance. The proposals included specific regulations regarding plantings, limiting the type and sizes of plants that may be used within a space. There are also several alternate proposals regarding benches. Finally, there were provisions requiring the publication and distribution of the regulations to avoid future conflicts.
Subsequently, I sent several requests regarding the status of the appointment of such a facilitator. On February 27, 2014, I received the following reply: "Quick email regarding the status of the Cemetery Rules Update process. We will release the Request for Quote (RFQ) for facilitation services today with the close next Friday. We will quickly then review and hopefully select a facilitator within the next week to begin the process. I regret that it’s taken this long, but we’re now ready to move forward."
It was not until April 29, 2014, when PARD finally announced that it had retained Smith and Associates to provide facilitation services and coordinate updating the rules and regulations. Interested parties were urged to provide feedback by commenting via the survey posted on Speak Up Austin, which would not be ready until May 1, 2014, or by participating in one of the open house meetings taking place in May. The open houses were not scheduled until May 20 and May 21, 2014. I attended the open house on May 20th. There was no business meeting or discussion of proposed regulations. The open house turned out to be nothing more than an opportunity to meet various employees of Smith and Associates and to answer the same survey questions that appeared on the Speak Up Austin survey. However, at that open house, stakeholders were informed that the initial presentation of the recommended rules and regulations (RRR) would take place June 5, 2014, from 6:00 to 8:00 PM at the Zilker Botanical Garden Auditorium and that the final presentation of the RRR would be on June 18, 2014, at the same venue.
At the open house, I and several other stakeholders expressed our concern regarding the proposed schedule. First, as we pointed out, PARD had six months to initiate a process with the public to review and revise the current cemetery rules and regulations, and had done nothing during that entire time. After delaying the process for over six months, we questioned why PARD suddenly was requiring that the review process be rushed to completion in less than one month. Further, there was no provision that would allow stakeholders to actually read and review the RRR prior to the June 5th meeting, so that we could be properly informed and prepared. Stakeholders expressed their concern that they would simply be handed the RRR at the June meeting and have to try to read, review, and discuss the RRR within the two hour time period allotted. I pointed out that if the June 5th meeting was going to be a true forum permitting public input into the RRR, and Smith and Associates was sincere in its assurances that public input would be fully incorporated into the revision process, then at least some of the recommendations and comments made by the public during the June 5th meeting should be incorporated in the RRR. Therefore, sometime between the June 5th meeting and the final presentation of the RRR on June 18th, there should be at least one interim meeting to review and discuss changes made in the RRR following the June 5th meeting. I pointed out that the June 18th meeting was announced as the "final presentation" of the RRR, "final" indicating that there would be no further changes. I also noted that my brother and sister-in-law, who were very involved with initiating the protests that lead to the City Council resolution requiring the review and revision of the cemetery rules and regulations, would be out of town on June 5th and therefore will be unable to attend the initial presentation of the RRR. I stated that it was ironic, and wrong, that two important stakeholders who have waited for over six months to be part of the process now could not participate.
The resulting meetings overseen by Smith and Associates were a series of on-line surveys and a handful of meetings that were little more than allowing stakeholders to respond to such surveys, with PARD and Smith and Associates making all the decisions. Not once were the stakeholders ever actually allowed to sit down at the table with PARD and work together on some sort of reasonable compromise, which was certainly what was envisioned in the original City Council resolution. The resulting proposed rules and regulations published by PARD and its consultants were unsatisfactory and unworkable. These rules and regulations were supposed to be presented to the PARD board for approval on July 22, 2014. I and other stakeholders planned to appear at that meeting and protest not only the process by which the rules and regulations were developed, but many of the specific proposals as well. That meeting was canceled and the stakeholders were later told that instead the rules and regulations would be developed as part of the Cemetery Master Plan.
I contacted PARD multiple times regarding the status of the rules and regulations revision, and was always told that PARD was focused on the Master Plan, but would be returning to the rules and regulations process when the Master Plan was completed. However, many months later, when the draft of the Master Plan was made public, the only reference to the current status of the rules and regulations revision was on page 505, which stated: "Since the master plan scope of work already includes a review of the rules for grave ornamentation, PARD asked the master plan team to expand the scope of their work. McDoux Preservation. . .drafted a revised scope of work, to include an analysis of the data gathered through the Smith/Associates public engagement process, a new review of best practices, the development of criteria for the evaluation of alternatives, and a few examples of such alternatives. That work is being completed separately from the master plan but may be appended to it at a later date."
I again contacted PARD and pointed out that this appeared to mean that McDoux Preservation was reviewing and revising the cemetery rules and regulations without involving the stakeholders in the process, and was acting in violation of the October 17, 2013, resolution. I noted it therefore could be argued that any rules and regulations that might later appended to the Master Plan would be invalid, void, and without any force and effect. PARD’s response was that there would be an update on the process "very soon."
There was no further action by PARD until over three years later, on October 27, 2016, when PARD held a public meeting announcing that it was reinitiating the rules and regulations process. At that meeting the public was told that PARD did not have to have City Council approval of the proposed rules and regulations and that PARD would have new rules and regulations in place by January of 2017.
In April of 2017, PARD announced it had partnered with Conservation Corps “to facilitate the dialogue with the community regarding how to best update the Cemetery Rules.” These meetings took place April 10, 18, 25, 26, and 27, 2017.
There was no further action from PARD until it announced in October 2017 that it would be posting draft cemetery rules and regulations and that there would be only two community meetings, October 23 and 26, 2017, to discuss the proposal.
December 12, 2017, PARD posted the proposed rules and regulations at the City Clerk’s office, with the public comment period to end Friday, January 11, 2018.
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