News Blues

On September 30, 2022, NBC local affiliate KXAN featured a story regarding the cemetery rules and regulations entitled "Austin seeks to overhaul 1978 cemetery rules; Save Austin Cemeteries founder concerned with changes." For a news station whose logo includes "In-Depth. Investigative," the story did neither. In these days of cost-cutting and news staff layoffs, the story fell into the typical bland "both sides" reporting so unfortunately typical of much local and national news media: 1) let the government spokesperson speak on uninterrupted and unchallenged while he or she talks about some new project or policy and assures the public that his or her agency has only the public's best interest in mind (the old, "I'm from the government and I'm here to help" cliché); 2) contact the first person on the station's Rolodex/e-mail list/etc. who might have an opposite view and give him or her a couple of carefully edited quotes; 3) let the government spokesperson respond that his/her agency always works with the public and is just so hurt and shocked to be misunderstood; and 4) cut and ready to roll. Hard-hitting journalism. . . NOT!

The story begins by stating that after a "decades-long process, the City of Austin may update its cemetery rules early next year for the first time in 45 years." There has not been any "decades-long process." The Austin Parks and Recreation Department (PARD) simply ignored the rules enacted in 1978, never publicizing or publishing them or taking steps to enforce them, until 2013, when the PARD cancelled its maintenance contract with Intercare Corporation. The story quotes PARD cemetery operations manager Tonja Walls-Davis as stating," I started with Parks and Recreation under cemeteries in 2016. This process had already started in 2013. What I did is pick up the debris from someone else. Our 1978 rules were not completely clear, and I feel like the updated rules are a little less restrictive than the 1978 rules.”

Walls-Davis rather disingenuously leaves out the fact that what started this process in 2013 was PARD declaring 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. PARD wanted to force families to dismantle gravesite gardens and memorials which had previously been created with the implicit and explicit permission by PARD. Many of these gardens and memorials had been in place for years, even decades, and cannot be removed without damaging and desecrating the graves. On October 17, 2013, I and other members of the public appeared before the Austin City Council to protest this 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 gravesite memorials, many of which have been in place for years, simply because PARD had failed to fulfill 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. 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. It now has been over NINE YEARS, solely because of PARD's equivocations, bureaucratic foot-dragging, and needless delays. Walls-Davis is certainly fully aware of the controversial history of these rules, including an email I sent to her on October 23, 2016, providing her with a detailed timeline of the revision process to date, as well as a copy of my testimony before the City Council on October 17, 2013. 

Walls-Davis is further quoted as saying, “I’m hoping that people will be open-minded about these rules. Even if they don’t accept them all the way, I’m hoping that some of their suggestions will be a happy meeting point for cemetery operations and for our stakeholders." Walls-Davis not only seems to conveniently forget that under the October 17, 2013, City Council resolution PARD was required to work in collaboration with stakeholders on the rules revisions, but also that PARD over the past NINE YEARS has done everything it can to delay and limit public participation in the cemetery rules and regulations process, as well as ignore any and all public input. The typical pattern for PARD over the past nine years has been long delays with little or no communication with the public interrupted by a handful of hastily called public meetings with minimal notice and 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.

The article reports that the draft rules impose a requirement for written approval before cleaning or repairing a memorial (the article does not state on whom, but the proposed rules state that the owner of a space is solely responsible for cleaning and repairing memorials and mausoleums and must obtain written approval from Cemetery Operations before undertaking such tasks). However, then the article goes on to claim that currently, "city employees are not permitted to clean, maintain, repair or replace damaged memorials in their cemeteries. Under state law, a burial site is the private property of the space holder; this ownership is passed on to next of kin or as laid out in a will." First, there is nothing in either the 1978 rules, the City of Austin Code, or state law that prohibits city employees from maintaining memorials. Under the 1978 rules:

Should any existing memorial or mausoleum become unsightly, dilapidated, or a menace to the safety of persons within the cemetery, the Superintendent shall have the right to correct the condition or remove the same. The expense of the removal of repair may be charged to he space owner.

More significantly, under under Section 713.011 (Maintenance Of Municipal Cemeteries), Texas Health and Safety Code, a municipality that operates or has jurisdiction over a public cemetery must maintain the cemetery in a condition that does not endanger the public health, safety, comfort, or welfare. This includes:

(b) A municipality's responsibility to maintain a cemetery under this section includes:

(1) repairing and maintaining any fences, walls, buildings, roads, or other improvements;

(2) leveling or straightening markers or memorial; 

(3) properly maintaining lawns, shrubbery, and other plants;

(4) removing debris, including dead flowers and deteriorated plastic ornaments; and

(5) promptly restoring gravesites following an interment.

Under state law, therefore, a municipality's responsibility to maintain a cemetery includes leveling or straightening markers or memorials. PARD has repeatedly denied it has any such a duty under state law, instead insisting that the duty and cost of maintaining gravestones and markers falls solely on the owner of the space and his or her heirs. Under the proposed rules, PARD continues dodge its legal responsibilities under state law. Proposed Rule 14.4.5 (Cemetery Operations Rights and Responsibilities) provides that Cemetery Operations "reserves the right" to perform certain activities within a cemetery to preserve the public health, safety, comfort, and welfare, including leveling and straightening memorials. PARD has a LEGAL DUTY to do this, not some sort option or reserved right.

Further, under proposed Rule 14.4.6 (Space Holder Rights and Responsibilities), Section (B), the owner of a space is solely responsible for cleaning and repairing memorials and mausoleums. An owner must obtain written approval from Cemetery Operations before undertaking such tasks. This is NOT what state law provides. Under Section (D), if memorial or mausoleum is in disrepair, Cemetery Operations must attempt to notify the owner to undertake repair or replacement and if the repair or replacement has not been completed within 180 days of the first attempt to notify the owner, Cemetery Operations may repair or replace the item and charge the expense to the owner. Again, this violates state law, which clearly imposes this duty on the municipality. 

Section (C) requires that the owner, heir, or assign, provide Cemetery Operations with current contact information and the contact information of any person designated by the owner to receive communications. The owner must update such information as necessary and Cemetery Operations is entitled to rely on the contact information on file in communicating with the owner. However, PARD has admitted in the past that its current record keeping is so poor and haphazard, it often is unable to locate the space owner or his or her family. The proposed rules do not address what happens when PARD cannot find the owner or an heir, suggesting that instead PARD is authorized to allow memorials to simply continue to tilt, tumble, and deteriorate.

Finally, under proposed Rule 14.4.8 (Rules for Memorial Work) Section (A), the resetting, releveling, repairing, or cleaning of a memorial or other structure within a cemetery must be performed by a contractor approved by Cemetery Operations. Such work may be subject to an inspection fee and other fees as set forth in the fee schedule available from Cemetery Operations. So not only is PARD failing to fulfill its duties under state law, it is apparently looking at making extra income by charging fees to those preforming what is the PARD's legal obligation. 

The article's noting that "under state law, a burial site is the private property of the space holder; this ownership is passed on to next of kin or as laid out in a will," is a non sequitur and has nothing to do with PARD's explicit duty under state law to maintain the cemeteries.

The article notes that, "Feedback and criticism to the new rules has already begun accumulating on the public comment page," but does not discuss any of these comments or criticisms. The only dissenting voice is Dale Flatt, the founder of Save Austin Cemeteries (SAC), who states that "a lot of us who are not happy with these proposed changes. They’re trying to erode the rights of lot owners and descendants to care for their graves." According to the article, "Flatt particularly opposes changes involving memorial repairs and says that the city shouldn’t force repairs on descendants, who may not even know of a relative’s grave." It also reports that, "Flatt adds that he believes that PARD is not following proper protocol for rule adoption."

Now, having performed its duty to get a couple of quotes by both sides, the article ends by duly giving Walls-Davis the last word, where she claims that her agency has "a very good working relationship with SAC." and, therefore, as to Flatt's comments, “So I’m really not sure where this comes from.”