Cemetery district board settles with families of two people buried in wrong graves, fires embattled district manager and appoints interim replacement
TULARE – The Tulare Cemetery board took three steps last week toward climbing out of the hole it had dug for itself.
At an April 7 special meeting, the board approved settlements with both families whose loved ones were buried in the wrong graves in February and then dug up and reburied on March 8 and unanimously voted to terminate the district manager in charge during the disinterment debacles. After a two and a half hour closed session, cemetery board chair Xavier Avila reported out to the handful of people in attendance that the board had revoked its original settlement of $3,058 for the family of Justinana Jacinto to offer a new settlement amount of $3,518, pending approval by the family. The board also agreed on a $6,400 settlement with the family of Silvano Martinez.
Avila also announced the board had terminated Leonor Castaneda, who had served as the district manager since 2017. The board has been under pressure to fire Castaneda since the Tulare County Grand Jury released its investigation last summer reporting antiquated bookkeeping practices had led to inaccurate and lost payroll documents and poor accounting of its endowment care fund.
That pressure intensified last month after the dual disinterments.
Former board member Vikky Gilson contended the cemetery was in violation of state law for digging up and reburying the bodies. The cemetery district manager can issue a permit for disturbing remains but only if a consent form has been signed by the deceased’s spouse, children, parents or siblings. The Martinez family claimed their father would not have wanted to move his remains and were shocked when they were told it was happening. If a surviving family member cannot be reached, a court order from the Tulare County Superior Court would be needed, according to California Health and Safety Code section 7500. Even in those extreme cases, the law requires the cemetery to attempt to make personal contact with the family 10 days before or attempt to reach them by mail 15 days before applying for disinterment with the court. The only exemption to these rules is if the body is being exhumed by the coroner for a criminal investigation.
At least three board members have mentioned they have yet to see the paperwork on the Jacinto and Martinez disinterments and the district office has been unable to produce its own policy for handling what should be an extremely rare and sensitive process.
Other public comments mentioned Castaneda was rude to grieving families over the phone, a stark contrast to the groundskeepers who were polite and respectful when dealing with families in person.
Castaneda declined to comment after the meeting but the board did report she had requested a Lubey hearing.
Deputy County Counsel Aaron Zaheen, acting attorney for the cemetery district, said Lubey hearings are a chance for an employee to clear their name of any wrongdoing prior to being terminated but after a recommendation to remove the employee has been made. Lubey hearings are typically held for terminations involving issues such as dishonesty, immorality, corruption, excessive force, sexual misconduct, theft, disloyalty to the government, association with subversive organizations, chronic alcoholism or drug use, racism, or lack of intellectual ability, although the board did not outline issues for termination due to privacy laws. Castaneda will be on paid administrative leave until April 16, when her termination will take effect.
Lubey hearings are different than Skelly hearings, where an employee has the right to be told why a disciplinary action was taken against them, including possible terminations.
The board held another special meeting the following day to appoint Castaneda’s replacement. The board voted 5-0 to appoint Phyllis Schneider as the interim office manager. Schneider is the current secretary and has 35 years bookkeeping and sales experience, primarily in the jewelry industry. She was hired by the district in February 2020. Castaneda was also the clerk of the board, keeping minutes for the meetings and handling public records requests. Lydia Cervantes is now handling those duties after the board appointed her as the interim clerk. Cervantes was hired three months ago as the receptionist for the district.
The board also approved an agreement with M. Green & Company in Visalia to provide bookkeeping services including preparing payroll, reconciling accounts, creating quarterly reports and provide QuickBooks training and consulting for employees.
The only item on the open session for the April 7 agenda was hiring a new foreman. The district has had high turnover in the position which oversees the grounds crew after one head groundskeeper resigned abruptly in 2017, and two more have been fired since 2019. The most recent fire was Brian Viera, who was fired on March 8 following the dual disinterment that took place that morning for the Jacinto and Martinez families. Viera has asked for a Skelly hearing. Avila said the foreman position will be re-agendized as hiring a permanent district manager for a future meeting.
Comments before council
The week started off with current members of the board, a former board member and a current member of the district’s audit committee telling their side of the story to the Tulare City Council. Cemetery board chair Xavier Avila said the cemetery was a “work in progress” but that they have made a lot of improvements.
“The papers seem to only want to talk about what’s wrong with something,” Avila said.
He also called out councilmember Jose Sigala, without mentioning him by name, for speaking at the Tulare County Board of Supervisors meeting on March 23 and asking them to investigate the cemetery district for fiscal mismanagement, board infighting and lack of public trust.
“I don’t know if that’s your role?,” Avila asked rhetorically.
Fellow cemetery district board member Alberto Aguilar said it wasn’t just one newspaper, but three local newspapers that have written about the recent mistakes burying people in the wrong plots. He said he suspects there has been embezzlement, or at least a gift of public funds, and the financial records are not only wrong but possibly falsified.
“Everything is not fine,” Aguilar said. “I don’t like people coming up and telling you stories and telling you untruths.”
Former board member Vikky Gilson applauded Sigala for taking his concerns to the Supervisors. She said it is true the city council does not have oversight over the board but that the cemetery district certainly falls within the boundaries of the council and affects nearly all of their constituents in some way.
“It is a concern to all of us with problems at Tulare Cemetery,” Gilson said. “Most of us have loved ones buried there. There are also public taxes, so we should all have a concern about activities that cause a lot of grief to citizens and some legal issues going on there.”
Linda Maloy, a member of the district’s audit committee, told the council there are no financial issues facing the district and nothing illegal is happening. She said the district’s finances have never been better and they just received their third positive outlook audit in a row.
“It was a good audit and there were only two recommendations,” Maloy said. “I just wanted to educate you just a little bit.”
Avila said there should be solidarity in local government entities working together to solve problems for common constituents. Avila, who also sits on the Tulare Local Healthcare District, said the city’s support was crucial in keeping the hospital district afloat when it filed for bankruptcy in the wake of alleged embezzlement and fraud by its former administrative contractor Health Care Conglomerates Associates. In 2019, the city agreed to loan the hospital district $9 million, which it paid back last June.
“That is an example of how two government agencies can work together to solve a problem instead of creating division, which creates more problems,” Avila said.
