Digging In: Cemetery Association Transparency

Bill Comerford became a member of Wallingford’s Center Street Cemetery in 2012 to fulfill a promise to a dying friend. His involvement would result in multiple legal battles, including a lawsuit, multiple hearings before the Freedom of Information Commission (FOIC), and a challenge in state superior court.

“I wear a scarlet letter.” Bill Comerford said of his social standing in Wallingford, where he resides.

Comerford says he uncovered lawbreaking by the Center Street Cemetery Association officials, who he claims were breaking a law that requires cemetery sextons to send burial reports to town clerks. His attempts to find a fix resulted in the disbanding of the cemetery association subcommittee he sat on, a lawsuit he says was brought to bankrupt him, and a protracted legal case involving the definition of a public agency.

cemetery associations

Wallingford’s Center Street Cemetery is perhaps most notable for containing a monument to—but not the body of—Declaration of Independence signer Lyman Hall, who was born in the town. The cemetery has been in use since the town was founded in 1670. It contains numerous historic features and is the final resting place of several historic figures. It was placed on the National Register of Historic Places in 1997.

But in its roughly 350-year history, the cemetery grounds haven’t always been maintained. At the beginning of the twentieth century, the grounds had fallen into an “unkempt and neglected condition.”

In response, the Center Street Cemetery Association was established in 1911 and granted the right to “assume the control, care, improvement and management” of the cemetery grounds by Wallingford residents.

The initial agreement between the town and the cemetery association also grants the organization the power to adopt rules and regulations to maintain the cemetery and protect it from “spoliation and desecration.” The original agreement lists functions like creating rules for assigning graves, moving or removing bodies, opening graves, and the physical organization of things like landscaping and walkways as rules within the cemetery association’s purview. It also stipulates that the Board of Selectman pay the cemetery association not more than $400 annually to help care for historic graves.

The initial agreement also gives Wallingford’s Board of Selectmen the power to hear and adjudicate complaints brought against the cemetery association and to reassert its control over the cemetery if, after appealing to a court, the association fails to abide by the terms of the initial agreement.

Wallingford also entered into a management agreement with the cemetery association in January 2018. The agreement grants the association authority to maintain and operate the cemetery and make rules and regulations to do so. It also stipulates that all records relating to burials and building repairs are the town’s property.

The town also agreed to provide an annual payment to the association for its care of the cemetery. In 2017-2018, the first year the agreement was in place, Wallingford agreed to pay $81,735. For subsequent years, the association was to request the amount it considered necessary to fulfill its duties under the agreement. If the town does not approve the requested amount through its budgeting process, the association can terminate the agreement. The agreement ends on December 31, 2027.

Center Street Cemetery Association’s agreement with Wallingford isn’t the only thing that governs its functions. State statute requires that cemetery associations be organized in keeping with the state’s non-profit corporation laws. They must also hold an annual meeting to accept an annual financial statement and must retain the minutes for at least 20 years. To obtain the minutes, an interested party can petition the probate court, which the court might grant if it finds the petitioner has a sufficient interest to warrant disclosure and if “the petition is not for the purpose of harassment.”

But, beyond that, cemetery associations may not be required to release meeting minutes to the broader public. Bill Comerford, who formerly served on the cemetery association’s building and grounds committee, found this out when he tried to obtain minutes and a copy of the agenda from a meeting the association held on July 14, 2014.

uncovering the truth

Comerford told Inside Investigator that he initially got involved with the cemetery because Peter “Digger” Wasilewski, a friend and fellow Wallingford resident whom he knew from town hall meetings, once told him to look into the cemetery if anything ever happened to him.

Unbeknownst to Comerford, Wasilewski had terminal cancer and later passed away. Comerford stood by his commitment and joined the cemetery association. Membership is open to any Wallingford resident who is 18 or older, or to anyone who can prove they are a descendent of an individual who is buried in the cemetery.

Comerford said he paid $10 to $15 for his membership (the cemetery association’s website currently lists annual membership fees at $25). He then became a member of a building and ground subcommittee. He also asked for a copy of the association’s bylaws and procurement policy because he wanted to familiarize himself with the organization.

Comerford told Inside Investigator that Wasilewski, prior to his death, sent a letter to the town containing allegations that cemetery association officials were not following the law.

State statute requires that sextons “report all interments, disinterments and removals” to the registrar of the town in which the cemetery is located. Reports are due the first week of the month following the month in which movement of the body was completed. Violating this requirement is a class D felony and carries a hundred-dollar-a-day fine if the reports are not turned in more than two weeks after they are due.

According to Wasilewski, the cemetery association did not submit burial reports on time. Comerford said he spent the better part of a year investigating this claim and, after visiting the town clerk’s office, said his “jaw dropped” when he was able to confirm the burial permits for “the better part of a decade” were not available.

“Do the simple math: the fine is a hundred dollars a day. For 30 days, that’s $36,000. And that’s just one [death]. And there’s hundreds over the span of decades.” Comerford said.

Burial reports made to the town of Wallingford by sextons of various cemeteries between 2000 and 2009 were included in evidence submitted as part of a court case Comerford was involved in over his disputes with the cemetery association and provided to Inside Investigator. Though they show the burial of deceased individuals in a number of cemeteries, there are none in the Center Street Cemetery.

But Comerford said his public airing of these allegations, including on Facebook, created issues. According to Comerford, an initial meeting of the grounds committee devolved into shouting and chaos. He was taken to task by the cemetery association over public discussion of various issues related to the cemetery, and the day after Comerford posted on Facebook about the missing burial reports, he said the cemetery association called an emergency meeting and disbanded the building and grounds committee entirely.

Suspecting that the emergency meeting and disbanding of the building and grounds committee had something to do with him, Comerford requested the opportunity to view the minutes and agenda from the July 14, 2014, Board of Directors meeting. He also requested communications between the cemetery association president and the town’s corporation counsel.

The association denied Comerford’s request on the grounds that, despite receiving taxpayer money, they were not a public agency.

Peter Gouveia, who was named in the complaint and served as the president of the cemetery association at the time, also stated during an initial hearing that he was happy to make cemetery association records available to the public, as long as requests were found to be “legitimate and reasonable.” In the same email, Gouveia stated that he had previously turned over records Comerford had requested, as he believed had others, but he did not have access to some of the information Comerford was seeking.

Craig Fishbein, a Wallingford town councilor and Comerford’s legal representative was able to obtain the minutes when he asked. These were also included as exhibits in the FOIC’s record of the complaint.

Whether the cemetery association was the functional equivalent of a public agency was central to the complaint Comerford then filed with the Freedom of Information Commission (FOIC), with Comerford maintaining they were and the association maintaining they were not.

To determine whose interpretation was correct, the FOIC turned to the Woodstock test.

the woodstock test

In 1980, the Connecticut Supreme Court created a test for determining when private entities performing public functions become the “functional equivalent” of a public organization subject to FOIA.

In Board of Trustees of Woodstock Academy v. Freedom of Information Commission , a group of Woodstock residents submitted a FOIA request to Woodstock Academy seeking past and present financial records.

Woodstock Academy received a charter from the state legislature in the early 1800s to serve as a secondary school for Woodstock, which does not have a public high school. The town designates other schools in the area for high school students to attend, with most students attending Woodstock Academy. Tuition funding is provided by the municipalities that send their students there. At the time of the case, roughly 75 percent of the school’s funding came from the town of Woodstock.

The academy denied the residents’ FOIA request on the grounds it was not a public entity. As part of a complaint brought for the denial of the request, the Freedom of Information Commission (FOIC) ruled the school was a public entity and ordered the records be turned over. The school appealed, but a trial court upheld the FOIC’s finding. The school appealed again, putting the case before the state supreme court.

In their ruling , the court noted that federal courts have created a “functional equivalent” test to determine when private organizations were performing public functions and therefore subject to the federal Freedom of Information Act.

The test includes four elements:

1. “whether the entity performs a governmental function;
2. the level of government funding;
3. the extent of government involvement or regulation; and
4. whether the entity was created by the government.”

The court found Woodstock Academy met all of these requirements and therefore was subject to FOIA.

But the ruling had broader applications: it established the Woodstock test as the standard Connecticut courts, and the FOIC, would rely on to determine whether a private organization was behaving as the functional equivalent of a public entity for the purposes of public records law.

In its Woodstock ruling, the court also noted that applying the test on a case-by-case basis was “best suited to ensure that the general rule of disclosure underlying this state’s FOIA is not undermined by nominal appellations which obscure functional realities.”

In a subsequent ruling in 1991, the court also incorporated a federal court’s finding that all four elements of the test must “be considered cumulatively, with no single factor being essential or conclusive.”

governmental function

The FOIC’s finding in Comerford’s complaint emphasized that no single factor is essential to determining whether a private organization is the functional equivalent of a public entity.

Both parties stipulated and the FOIC found that the cemetery association meets two of the Woodstock test’s four prongs: that the association was substantially funded by the government and that it was created by the government.

However, the FOIC still ultimately found that the cemetery association is not a public entity.

The bulk of the case, which involved multiple hearings, revolved around the Woodstock test’s first prong: whether the cemetery association was performing a government function.

During an initial hearing at which neither party’s legal representation was present, Comerford argued that the town’s public works regularly entered the cemetery grounds to do things like mow the grass and collect leaves. He also argued that the existence of various subcommittees formed by the cemetery association showed a level of involvement with the town that rendered them a public agency. Comerford referenced a study committee, a building committee, and a bid committee.

Comerford also noted that around 2013, the town purchased several pieces of land adjoining the cemetery. One contained a building, which the cemetery association was given use of as a garage. Comerford argued that discussions between the cemetery association and the town regarding the town’s purchase of the land and use of the building by the cemetery association showed enough involvement between the two that the association should be a public agency.

Gouveia said during the initial hearing that he received a call from the mayor about possibly using the garage and met with both the mayor and the town attorney. He said the mayor told him the cemetery association needed to put together a study committee to see if the building could be converted to use as a garage.

To help pay for the building, Gouveia that they decided to apply for a grant.

This was also a point of contention for Comerford because the cemetery association applied for the grant without the town’s knowledge. But only the town—not the cemetery association—was eligible to receive the grant, which it was awarded.

Gouveia added that once the building was complete—after the town received the grant—he discussed turning it over to the cemetery association with the mayor. The building was, according to Gouveia, also why the town drew up a new management agreement and it is specifically referenced:

“The Association shall also maintain and operate the property located at 60 Prince Street. The Prince Street building shall be used exclusively by the Association for maintenance operations, office use and meetings for the Cemetery and the Association. No other use by the Association is permitted without the Town’s consent. Further, the Town will not permit the use of 60 Prince Street by any other party during the term of this Agreement.”

“The cemetery is owned by the town. However, the structures that are built upon the town are approved by the entity. That is the ultimate in government involvement.” Fishbein said during a hearing, referencing the garage.

Fishbein also directly questioned Sal Amadeo, Wallingford’s purchasing agent, during a hearing, asking if there were any documents related to the creation of a bid review committee for projects the town undertook at the cemetery. Amadeo stated that he didn’t have any knowledge of such a committee being established, but that he had attended a meeting with the mayor and Gouveia about developing requests for proposals for the selection of an architect for the garage. He also stated that the town was not involved in selecting the architect.

Fishbein also questioned Amadeo about a firehouse the town had built several years prior under the direction of the town’s public fire department. Amadeo stated that the process had been controlled by the fire department, with a building committee created by the town.

Fishbein’s point was that there was a discrepancy in the similarity between the way the two building projects had developed but that the fire department was considered a public agency while the cemetery association, which had also created its own building committee, was not.

In his post-hearing brief, Fishbein wrote that it was “important to note that the members of the Board of Selectman (sic) were also made members of the Board of Directors of the CSCA.”

“One can only surmise that this was so that the government could still maintain some level of control through its internal actions. Certainly there is no evidence to the contrary, and certainly the CSCA was not created to be an independent contractor of sorts, wholly separate and apart from government.” Fishbein wrote.

Fishbein also noted that the CSCA established rules for the use of the town’s property, including prohibiting smoking, which carries legal penalties.

“Therefore, the government giving the CSCA the unilateral power to create, on its own, regulations possibly subjecting the public at large to possible criminal prosecution (a job usually undertaken by the government through proper notice and passage of statutes and ordinance) for actions undertaken upon town property, gives the CSCA a limited level of government authority, thus the CSCA performs a governmental function.” Fishbein wrote.

foic decision

But the FOIC ultimately didn’t find any of these arguments persuasive.

“It is found that operation of a cemetery is not a traditional government function, and that operation of a cemetery has not evolved into a government function over time. However, even if operation of a cemetery was deemed to be a governmental function, it is found that the association is not required to perform this function, but rather, operates the cemetery pursuant to the agreement.” the FOIC’s decision stated. “It is found that the association does not have power to govern, regulate, or make decisions affecting government.”

Comerford unsuccessfully argued in a post-hearing brief that the cemetery association performs a governmental function in operating the cemetery because it took over this responsibility from the town. The commission stated that there was no case law to support the idea that something becomes a government function if it was previously carried out by government.

Despite both parties stipulating that the cemetery association was about 80 percent funded by government, the FOIC also took issue with this agreement.

“The courts have distinguished between funding that constitutes consideration for services provided pursuant to a contract, i.e., “fee for service” and “a direct allotment of government funds,” and concluded that a “fee for service” arrangement pursuant to a contract is not “government funding” for purposes of the Woodstock analysis.” the FOIC’s decision states. The FOIC indicated it believed the cemetery association’s funding fell into the category of a contract, rather than government funding, but did not adjudicate the issue because neither party addressed it.

Comerford and Fishbein also failed to persuade the FOIC that the cemetery association established the town had direct regulatory control over the cemetery, necessary to fulfill the “extent of government involvement” prong of the Woodstock test.

According to the FOIC, Comerford offered testimony to the town’s occasional involvement in the cemetery association’s affairs but the evidence did not show sufficient enough or constant enough control over its day-to-day activities.

On balance, while the parties stipulated the cemetery association fulfilled two of the Woodstock test’s prongs, the FOIC ultimately found it was not a public agency.

“However, it is found that the association is not performing a “government function” and is not significantly controlled or regulated by government.” the FOIC concluded, also noting that the records Comerford sought were therefore not public records.

irregular proceedings

Fishbein spoke to Inside Investigator about the FOIC case and noted what he described as several irregularities in the proceedings.

Fishbein noted that on the first day of the hearing at which DiBello appeared—Guaveia did not have legal representation present during the first hearing because he was trying to find a pro bono lawyer with experience working on FOIA issues—he stipulated that the cemetery association fulfilled the Woodstock tests’ prong of being founded by government.

But after the hearing, he received an email from the hearing officer asking about the evidence for that stipulation.

Both Fishbein and Randall DiBella, Gouveia’s attorney, were also asked to address the Woodstock test’s fourth prong—whether the entity was created by government—in their post-hearing briefs.

“If I understood correctly, you stipulated that the [cemetery association] was created by government. However, this stipulation appears to be contrary to the evidence in the record, specifically, the Articles of Association filed with the Secretary of the State, which appear to indicate that the Association was created by private citizens as a non-stock corporation.” Kathleen Ross, the hearing officer, wrote in an email to Fishbein and DiBella.

Fishbein stated that if Ross was going to ask for evidence, she should have done it during the hearing.

“The fact parties stipulate to a legal fact I think should carry weight.” Fishbein said, adding that the FOIC’s procedure was unprecedented in his years as an attorney.

While the FOIC ultimately voted in favor of accepting Ross’ hearing report finding the cemetery association does not stand up to the Woodstock test, they extensively debated the issue first, voting to continue deliberation of the matter to a second meeting. The commissioners wanted time to review case law on functional equivalence.

During the first meeting, a number of commissioners questioned Ross’ finding that maintenance of a cemetery was not a traditional government function.

Owen Eagen, then the FOIC commissioner, referenced the original 1911 agreement and the clause that allowed the town to void the agreement if the cemetery association did not follow it.

“They are subbing out one of their responsibilities, and then they are also paying for it. 80 percent of their function is being paid for by the Town of Wallingford. So—and one of the cases in there it says Wallingford has the purse strings. They can tighten the purse strings and say you know what, I don’t like what you are doing, I am not even going to give you the money this year to fund the operation, which would cause the operation to probably fold. So it is the government that is controlling.” Eagan said.

Commissioner Jonathan Einhorn also struggled with the definition.

“Here is what bothers me a little bit on this. Maybe—is that the town owns the land, the town that finances it for all intents and purposes. In the end the cemetery discriminates as to who they are going to use this facility. And so now the public comes in and says, whoa, we want to know about our tax dollars and use of our land.” Einhorn stated during the FOIC’s first meeting considering Comerford’s complaint.

Einhorn worried about the ability of the cemetery association to discriminate against non-residents of the town.

“You just can’t do it. You just can’t restrict residents of the other 168 towns from using your facilities. I am not sure how that jives with FOI. It bothers me that a town has taken that position.”

But Einhorn was not present when the FOIC reconvened to consider the complaint for a second time, which Fishbein objected to during the hearing. He was overruled because the FOIC had a quorum.

“I was of the understanding that a deliberative body is supposed to be composed of the same members.” Fishbein told Inside Investigator.

Eagan opened the second meeting by immediately asking Ross why she had found the cemetery association did not meet the definition of performing a government function.

Ross said she looked at “what the court has given as examples of what is a traditional government function.” She referenced a judicial ruling where the courts said determining whether an organization fit that role required looking at whether government is involved in the core of the program. Ross stated that she didn’t think the elements the courts had laid out were present.

“So I just don’t think that those things are present in this case. And, I mean, I guess minds can differ on that because obviously they do. But it’s just my feeling that this is not what the courts were looking at.”

The issue of whether the cemetery association was government funded also arose again during the FOIC’s second meeting deliberating the case.

“[H]ad the Respondents not stipulated that this was funded by the government, I think the analysis under the case—under the court case precedent is that this is not funded by government. This is fee for service. This is services provided under a contract. This is payment for services provided pursuant to an agreement.” Ross said.

She also mentioned, both in FOIC meeting and during the initial hearing in the case, that she had recently dealt with a similar case involving a question of whether a private organization was acting as the functional equivalent of a public entity.

This was also a point of contention with Fishbein, who made the assertion during the FOIC’s first meeting that he believed Ross had come to a preconceived conclusion about Comerford’s complaint based on the first case. Ross took issue with this characterization.

Ultimately, the FOIC voted unanimously to adopt Ross’ report. Eagan, before announcing his vote, said that he had struggled with the decision and stated he believed “legislation is in order if this is going to be changed.”

appeal

Comerford appealed the FOIC’s decision in New Britain Superior Court, arguing that the FOIC’s finding about the cemetery association filling a government function was misguided. Concerns about Ross’ perceived bias over the facts of the case played a prominent role in Comerford’s petition to the court.

“The decision of the Commission was improper, illegal, arbitrary and capricious in that it adopted [Ross’s] proposed decision which was tainted by the bias of having pre-judged the matter, as well as her disfavor with the parties having stipulated as to the disposition of two of the factors being considered.” Fishbein, who also represented Comerford in the case, wrote in the appeal.

Comerford argued that Ross’ decision that the cemetery association did not meet the Woodstock test because owning a cemetery was not a traditional government function was erroneous.

“Here, the Commission takes the position that the only government functions that can possibly meet that Woodstock prong are those that are “traditional’ like fire, police, and education. However, no court of competent jurisdiction has ever said that only “traditional” government functions apply.” Fishbein, who also represented Comerford in the case, wrote.

But the court was not persuaded and ultimately found that the “simple operation of a cemetery is not a classical government function.” Like the FOIC, it also emphasized that the cemetery association’s relationship with the town was contractual.

“Even if operation of the cemetery amounted to provision of a government service, the provision of such a service through a contractual arrangement does not make the provider a public agency.” The court wrote.

The court also agreed with Ross’ finding that, despite what the parties stipulated, the funding agreement between Wallingford and the cemetery association was contractual.

“The fact that funding is received as a result of a contract and in payment for services renders this type of funding different from general appropriations made by a government to an agency.”

It also affirmed Ross’ finding that the town did not have substantial enough control over the cemetery association to meet the Woodstock test requirement. Finding in favor of the FOIC, the court dismissed Comerford’s appeal.

During the FOIC’s deliberation of the case, Eagan indicated a legislative remedy might be in order, and this is where Fishbein, who serves both on Wallingford’s town council and in the state legislature, turned next.

turning to the legislature

In 2021, Fishbein introduced a bill that stipulated any cemetery association receiving public funding from a municipality or other source would have to disclose meeting minutes if a petition was filed with the probate court in its judicial district. The bill never even received a public hearing.

The following year, in 2022, the Judiciary Committee introduced and Fishbein cosponsored HB 5211 , which would have added cemetery associations to the list of public agencies subject to FOIA if they were incorporated under state law as a nonstock corporation and if they received or spent public funds.

The bill received a public hearing, for which the FOIC submitted favorable testimony, writing it welcomed “any proposal that increases transparency in government” and citing the outcome of Comerford’s complaint.

Robert Gross, who is now the cemetery association president, submitted testimony opposing the bill in his capacity as a private citizen and a volunteer. Gross said he felt the association was being “harassed” by the bill.

“I feel because of the history with Attorney Fishbein being against this organization that the organization is being harassed and Attorney Fishbein is using this bill to circumvent the court system.” Gross wrote in his testimony.

The bill was voted out of the Judiciary Committee and placed on the House of Representatives calendar. But ethics concerns ultimately killed the bill. No further action was taken and it died when the legislature adjourned sine die.

buried

Despite years of legal wrangling, Comerford’s concerns about the cemetery association’s alleged lawbreaking are unresolved.

Comerford questions why decades of burial reports, which he says are all dated 2019 despite burials happening years earlier, going unfiled haven’t resulted in some sort of legal penalty.

Comerford blames a “good old boys’ system” that he says exists in the town and in the cemetery association leadership.

But regardless of the merit of those claims, it is true that the rulings from the FOIC and the courts give legal cover to cemetery associations to deny information to individuals for pretty much any reason they wish, even when they’re receiving public funds.

Wallingford town council meeting minutes capture frustrations with the cemetery association’s finances that go beyond personal disputes with Comerford. On several occasions, town councilors, including Fishbein, dug for more detailed information about the association’s finances and the cemetery association did not answer.

The town council ultimately voted on those occasions to provide the cemetery association with the funds it was requesting. But short of the ability of town residents to go to probate court to acquire meeting minutes, there is little in the law that compels transparency from cemetery association leaders, even to the local government officials they’re requesting funding from.

Under current law, what transparency ultimately boils down to is relationships and goodwill. But if personal disputes arise and an individual falls out of favor with the leadership of a cemetery association, they may not be able to obtain information that pertains to public dollars and public land. And that is likely to continue, unless the legislature decides to act.

“In my opinion, they still need to be held accountable.” Comerford said.

The post Digging In: Cemetery Association Transparency appeared first on Connecticut Inside Investigator .