Heyl Royster


The Cemetery Oversight Act: What You Need to Know at the Local Level

By Brett M. Mares, bmares@heylroyster.com

The fact that we have been burying our dead for well over 100,000 years might lead some to mistakenly conclude that cemetery law is a dead issue. However, problems surrounding burial have long been of concern to public officials, and attention is again on the topic because of public outcry resulting from mismanagement of several cemeteries in Illinois.

In the summer of 2009, for example, four employees of Burr Oak Cemetery in Alsip, Illinois were charged with felonies connected to re-selling occupied burial plots at the property. "Cook County Sheriff Tom Dart said the four would excavate the [occupied] graves, dump the remains and pocket the cash." Katherine Wojtecki and Taylor Gandossy, 4 Charged with Digging Up Graves, Reselling Plots, CNN.com (Jul. 9, 2009), http://www.cnn.com/2009/CRIME/07/09/illinois.cemetery.scheme/index.html?iref=mpstoryview. As a result, the Illinois General Assembly imposed strict regulations upon the funeral industry, including the creation of the Cemetery Oversight Database, a public collection of burial information for each of Illinois' non-exempt burial grounds. Though many in the Illinois General Assembly are now hoping to ease requirements imposed by the Cemetery Oversight Act, these regulations continue to affect local government officials and those in the funeral industry. Rachel Bogart, Illinois Senate Reduces Strict Regulations on Small Illinois Cemeteries, news.yahoo.com (Apr. 23, 2011), http://news.yahoo.com/illinois-senate-reduces-strict-regulations-small-illinois-cemeteries-194900555.html. By staying up to date with recent changes to Illinois' cemetery laws, local officials can make sure that those they serve are protected.

The Cemetery Oversight Act ("Oversight Act") essentially operates as consumer protection legislation, while at the same time acknowledging the weight of the subject matter with which the law deals. "The citizens of Illinois have a compelling interest in the expectation that their loved ones will be treated with the same dignity and respect in death as they are entitled to be treated in life." 225 Ill. Comp. Stat. 411/5 (2010). Therefore, the state has put in place laws aimed at preserving the sanctity of human remains, while at the same time providing enough flexibility so as to preserve "family, ethnic, cultural, and religious traditions." Id. Though the Oversight Act does address public health concerns, it is largely geared toward maintaining public confidence in the funeral industry. Significantly, the Oversight Act does not apply to family, religious, or inactive burial grounds, and smaller burial grounds also fall outside of its scope. Other properties, such as publicly owned cemeteries, are partially exempt from the Oversight Act, but must still comply with the ethical guidelines and licensing process laid out by the legislation. Actions taken by the City of Chicago pursuant to the O'Hare Modernization Act are fully exempt.

The Oversight Act requires that a cemetery authority obtain a license in order to operate in Illinois. 225 Ill. Comp. Stat. 411/10 (2010). To qualify for licensure, an applicant must not have committed acts which would "constitute the basis for discipline" under the Oversight Act. Id. Those convicted of a Class X felony or higher, or of a felony involving fraud or dishonesty, in the last ten years are also ineligible for licensure. An applicant must provide the Department of Financial and Professional Regulation ("Department") with a complete statement of assets and liabilities, as many of the problems that the Oversight Act seeks to address may stem from financial problems faced by the cemetery authority. Applicants must complete one of several certification programs, each of which focuses on a code of professional conduct and ethics put forth in this legislation.

Unfortunately, the Oversight Act adds to the cost of doing business in the funeral industry in several ways. First, fees must be paid in conjunction with attending the requisite classes and applying for licensure. Also, sale of cemetery assets, including undeveloped land, cannot be complete until the Department issues a license to the purchasing party. 225 Ill. Comp. Stat. 411/20 (2010). More significantly, the Oversight Act requires cemetery authorities to maintain impeccable records through a state database, including up-to-date information on the location of all plots on the property, an index of those interred, and personal information of those interred. Cemetery authorities typically have ten days to update the aforementioned information, and must make these records available for public inspection. Owners are also required to carry insurance coverage for problems like those encountered at Burr Oak, an expensive requirement due to the scarcity of insurance policies covering grave robbery. Zachary Colman, Illinois Lawmakers Consider Softening Cemetery Law, SJ-R.com (Apr. 23, 2011), http://www.sj-r.com/breaking/x1536001823/Illinois-lawmakers-consider-softening-cemetery-law.

If a dispute arises between a cemetery authority and a customer, and the two parties are not able to resolve the dispute, the cemetery authority has an affirmative duty to inform the customer of their right to have the Department conduct an investigation and mediation. 225 Ill. Comp. Stat. 411/25 (2010). The Department may then revoke, suspend, or place on probation the cemetery authority's license, or may reprimand or fine the cemetery authority depending on the outcome of the Department's investigation.

With costs rising in the funeral industry, more local governments may be called upon to step in and "rehabilitate, recondition and restore any neglected or abandoned" cemeteries, and then provide for their maintenance pursuant to the Cemetery Maintenance District Act ("Maintenance District Act"). 70 Ill. Comp. Stat. 105/8 (2010). According to the Maintenance District Act, any area wholly within the boundaries of a single county may be incorporated as a Maintenance District if fifty or more voter-residents petition to propose the arrangement to voters in the proposed Maintenance District, and a majority of voters support the incorporation. 70 Ill. Comp. Stat. 105/1 (2010). A Maintenance District is to be governed by a three-member Board of Trustees, with each member serving three year terms. These Trustees are to be appointed by the representatives of the smallest governmental unit within which the Maintenance District is located. 70 Ill. Comp. Stat. 105/3 (2010).For example, if the Maintenance District is located wholly within a township, the board of trustees for that township are to appoint the Trustees for the Maintenance District, provided that none of the Maintenance District Trustees also serve as township trustees.

"Trustees shall exercise all of the powers and control all the affairs of such district." 70 Ill. Comp. Stat. 105/5 (2010). In order to do so, Trustees may "pass all necessary ordinances, rules and regulations for the proper management and conduct of the business of the cemetery maintenance district for carrying into effect the objects for which the district was formed." Id. Trustees may also incur up to $50,000 of total indebtedness in order to acquire land for grave sites. Maintenance Districts may also levy limited taxes in order to finance the purposes of the Maintenance District Act.

The scandal surrounding Burr Oak Cemetery demonstrated that consumer protection issues dealing with a final resting place are emotionally charged. That is why it is vital that local officials understand not only the problems facing cemeteries today, but also the solutions available when those problems arise. By making sure those affected know their rights under Illinois law, and by stepping in where necessary, it is possible to assist constituents as they navigate trying times.