We Don't Need No Stinkin' Public Input!

In an iconic, but now politically incorrect, scene from John Huston's classic film, "The Treasure of Sierra Madre," the bandit Gold Hat and his gang confront three gold prospectors played by Humphrey Bogart, Tim Holt, and Walter Huston. When the bandits claim they are mounted police, the prospector played by Bogart demands "If you're the police, where are your badges?" Gold Hat responds "Badges? We ain't got no badges. We don't need no badges. I don't have to show you any stinkin' badges!" This line has now widely known to the public as the paraphrase, "We don't need no stinkin' badges!"  When it comes to public input, PARD has adopted Gold Hat's attitude, telling the citizens of Austin that they don't need no stinkin' public input regarding the administration of the public cemeteries. For over nine years PARD has done everything it can to delay and limit public participation in the cemetery rules and regulations process.  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 continues to flout the City Council resolution and engage in bureaucratic delay and equivocations. Further, although it is a public agency subject to the Texas Open Meetings Act, PARD failed to properly notify the public and stakeholders throughout the process. Other than e-mails sent to a select group of stakeholders who have been involved in the process from the very beginning, PARD has refused to make any actual good faith attempt to notify and involve the public. There are many citizens in Austin who are not computer savvy or who do not have access to the Internet. These citizens have no way of even knowing that new cemetery rules and regulations are being considered and no way of commenting on them, nor are they able to participate in any on-line meetings. Many Austin citizens with friends or loved ones resting in the Austin cemeteries therefore have been effectively disenfranchised by PARD’s decision to limit public notice to a single site on the Internet and to avoid any open public meetings. Further, in the past PARD has either failed to post information regarding new proposed rules or regulations or comment period on its website or has provided incorrect or conflicting information to the public.

The timeline below demonstrates 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. 

2013

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. 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.

One the next nine years, 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 have 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. 

October 24, 2013, at PARD's quarterly stakeholders meeting, 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. 

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. 

2014

January 30, 2014, during the quarterly cemetery stakeholders meeting on, 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.

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. 

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."

April 29, 2014, 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 Public Information Request 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. 

2016

October 27, 2016, after over two years of silence, PARD 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.

2017

April 2017, PARD again goes silent for some five months, when it suddenly announced that 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.

October 2017, PARD announces 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.

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. PARD’s e-mails to a small select group of stakeholders stated 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 this link 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. PARD did not correct the link until January 10, 2018, one day before the end of the comment period. 

PARD’s own website was completely silent regarding the comment period for the rules and failed to set forth the deadline for comments. A member of the public wishing to comment on the rules would 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 underscored PARD’s complete lack of transparency and engagement in this process. Only those who had been involved in the process from the beginning and were on PARD’s e-mail list received actual notice of the deadline. In other words, not only had 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 directed citizen comments to an invalid e-mail address link and this has persisted through the entire comment period. The only other notice I saw was a single small sign posted at AMP stated that the public comment period is from “December 12, 2017—January 12, 2018.”

The sign referenced a URL, http://austintexas.gov/cityclerk/notices/ occ_notices.htm," which opened 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 was incorrect and thereby be discouraged from making public comment. Further, the sign stated that the public comment period is from “December 12, 2017—January 12, 2018.” However, the e-mailed notices I received from PARD stated that the notice period ended January 11, 2018. This was contradictory and confusing; a citizen depending on the sign could actually miss the comment period by a single day.

 2018

On February 23, 2018, City of Austin Cemeteries sent an e-mail stating that it has received over 100 comments on the proposed rules and that responses to all comments will be posted on its webpage, with e-mails sent to all those who submitted comments. Responses are expected to be completed by early March. The e-mail further states that due to an inadvertent omission, the Parks and Recreation Department Director has decided to extend the public review process of the proposed rules, letting the final rule adoption date of February 19 for this proposal to pass, and that the re-posting of the revised rules will commence a new 31-day public review. 

Despite my detailed response to the proposed rules and regulations sent to D’Anne Williams of PARD’s Development Division on January 11, 2018, I never received any personal response, but learned through another stakeholder that PARD, typical of its lack of transparency, had posted a link to “Cemetery Rules Public Comments and Staff Responses” on the PARD Cemetery Division website in lieu of engaging personally with all those who took the time and made the effort to comment. Because of the terrible formatting, the entire document was not only very difficult to read but impossible to print in full. I discovered that in this document, PARD divided up my comments into 31 sections. In thirteen of those sections, PARD responded only with “See previous response” with no link or other direction to indicate which previous response. For nine sections, there was no response at all, even to comments raising urgent and important questions including: PARD’s lack of legal authority to impose new regulations on existing gravesites; how PARD intended to deal with existing gravesite gardens and memorials, many decades old, that had been created with PARD’s explicit and implicit consent; and issues regarding PARD’s failure to implement the Austin Perpetual Care Trust Fund (PCTF). PARD only responded to 10 sections, or less than one-third of my comments. And these responses were at best only cursory replies either asserting PARD’s authority to impose new rules and regulations or referencing specific proposed rules. I sent a 17-page letter and received a total of 21 brief sentences in response.

On March 30, 2018, PARD sent out an e-mail stating that based on feedback PARD had received several revisions were made to the Draft Cemetery Rules. The e-mail stated that the revised rules were currently under review and would be posted to the webpage as soon as final approval was received. A link is provided to staff responses to public comments. An almost identical email was sent on April 13, 2018.

In a email dated May 25, 2018, PARD stated that proposed cemetery rules have been resubmitted to the City Clerk’s office, and the 31-day posted public review began Friday, May 25, 2018 and ran through Sunday, June 24, 2018. PARD failed to put any public notice of the posting of the new proposed rules or regulations or comment period on its website. This was not rectified until June 19, 2018, less than one week before the end of the public comment period, after I personally pointed out this lack of public notice to Anthony Segura, assistant director, PARD. This time PARD apparently did not even bother to post signs at any of the cemeteries. 

To make matters even more confusing, an e-mail I received from PARD dated June 18, 2018, declared that the end of the public comment period ran through June 22, 2018, even through the posting with the City Clerk states that it runs through June 24, 2018, as did the May 25, 2018, email from PARD. This too was rectified after I personally brought it to the attention of Mr. Segura, but again not until June 19, 2018.

On August 2, 2018, Rule R161:18.08 is posted at the City Clerk’s Office, announcing the final adoption of “Rules for Cemeteries Owned and Operated by the City of Austin” by the Director of PARD.  August 13, 2018, a group of stakeholders meet with Kimberly NcNeeley, the acting director of PARD, and Anthony Segura, assistant director, regarding the posted rules and regulations, at Russell’s Bakery and Coffee Bar at 3339 Hancock Drive. The stakeholders express anger and disappointment that their comments were clearly not seriously considered and not one of their recommendations was adopted. Among the issues discussed were the continuing failure of PARD to properly notify the public and stakeholders and the lack of public meetings. McNeeley and Segura respond that the incorrect version of the rules was adopted and posted. They asserted that they had forwarded revisions to the Legal Department but due to a communication error these revisions were not incorporated in what was intended to be the final version of the rules. McNeeley and Segura stated that while they would investigate how to withdraw the rules, they recommended that the stakeholders file appeals regarding the adoption of the rules with the City Clerk’s Office. After discussion, McNeeley agrees that the rules and regulations process had been seriously flawed and failed to involve the stakeholders and the public and states that she will reopen the process with more public involvement and input. Because much of the work has already been done, she says that she thinks the process could be completed by the end of the year. 

On August 31, 2018, following numerous appeals filed by citizens, Rule No. R161-18.08 is withdrawn. Under the withdrawal, PARD is afforded additional time to engage with community members and stakeholders to refine the rules and to hold additional community engagement meetings, to be completed by the end of calendar year 2018. No later than March of 2019, PARD is directed to officially adopt the Administrative Rules in accordance with Chapter 1-2 Adoption of Rule.

2019

I contacted Segura on March 26, 2019, by e-mail expressing my concern that the August 31, 2018, withdrawal of Rule No. R161-18.08 provided that under the withdrawal, PARD "is afforded additional time to engage with community members and stakeholders to refine the rules and to hold additional community engagement meetings, to be completed by the end of calendar year 2018. No later than March of 2019, PARD is directed to officially adopt the Administrative Rules in accordance with Chapter 1-2 Adoption of Rule.” I noted that it was nearly at the end of March of 2019 and there has been no engagement of the community and stakeholders regarding refinement of the rules and certainly no “additional community engagement meetings.” I asked for affirmation from both Segura and then PARD director Ms. Sara Hensley that PARD had no intention of adopting any cemetery rules and regulations at the end of this month pursuant to the August 31, 2018, withdrawal, especially in light of PARD’s failure to comply with the provision regarding engaging stakeholders and the public and holding additional public meetings.  The following day, Segura responded that no changes to the cemetery rules will be implemented until citizen engagement has been concluded and feedback has been solicited. He further stated that the "City of Austin takes the cemetery rules process very serious and will not make any quick decisions without working with our cemetery partners and citizens.” 

On December 8, 2019, I visit my parents’ and niece’s graves to discover notices posted on all three graves stating that “(t)his burial site are (sic) in violation of the City of Austin’s Cemetery Rules and Regulations” and requesting that I review the rules and promptly remove the items within 30 days or the city will remove and dispose of them (there was nothing indicating just which items are allegedly in violation). The notices were posted November 25, 2019, the week of Thanksgiving, and the same day I flew out of town to visit family.  I e-mailed Anthony Segura informing him of the notices and stating that this is an outrageous and a complete and utter betrayal of over six years of trying my trying to work and engage PARD. I copied all members of the Parks and Recreation Board, as well as the Mayor and City Council members Alison Alter and Kathie Tovo, as well as McNeeley, Hensley, and Walls-Davis.  The following day I received an e-mail from Segura stating that PARD “currently operates under the 1978 cemetery rules that were adopted by Council under Resolution 780504-22 and continues to work with the Law Department to review and revise those rules, including the ornamentation policy. The Cemetery staff inadvertently tagged your lot areas as out of compliance, and I would like to apologize for any inconvenience this may have caused.” He further said that “PARD continues to work with the Law Department on the cemetery rules revisions, and it is our intent upon their completion, to engage stakeholders and citizen groups by scheduling meetings at which they may provide feedback on the revisions. PARD will also provide additional engagement opportunities at the cemeteries for those citizens who are unable to attend those meetings. Further, the revised rules will be posted online to solicit citizen feedback prior to their final adoption and implementation.” 

 2020

Almost a full year later, on December 10, 2020, I received an email from Segura stating that PARD is working with the Law Department to explore the possibility of codifying the 1978 Cemetery Rules into an ordinance that would, if approved by City Council, become part of the City Code. As part of that process, citizens would have the opportunity to provide input to Council regarding the proposed ordinance. He said that “responding to the many and varied legal issues related to the City of Austin is an immense undertaking” and that while “addressing the cemetery rules codification and the Perpetual Care Fund is important, the simple fact is that higher priorities have taken precedence.” Therefoe, Segura said that he cannot “provide an anticipated date of completion for either project.” He ended by thanking me for my “continued patience” and said that he will reach out to further communicate once he has have more information.

2022

However, despite Segura's promise to reach out to me when he had more information, on July 20, 2022, I learn from a fellow stakeholder that PARD was preparing to make a presentation before the Parks and Recreation Board (Board) on July 25, 2022, requesting the Board's permission to seek to amend state law regarding the PCTF so that PARD could dissolve PCTF and freely access the over $1 million principle. July 25, 2022, I appear at the Board meeting, only to learn that this item had been pulled from the agenda.

I hear nothing regarding the cemetery rules process until September 7, 2022, when, in an e-mail dated  PARD states that it is presenting the updated draft of proposed Cemetery Rules and Regulations for community review and feedback. Community members are invited to review and provide comments from September 7 through October 9 online. In addition, PARD will host a virtual community meeting on October 5 to review aspects of the draft rules and provide an opportunity for community questions and comments during the virtual setting. The next day PARD sent out second e-mail stating that it had "failed to recognize that the originally scheduled virtual meeting date falls during Yom Kippur. To avoid disrupting the observance of Yom Kippur, the meeting has been moved to October 10. The online comments will also be extended through October 10."  No notice or sign is posted at Austin Memorial Park and I assume at no other cemetery.