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Unofficial Opinion 99-5

Unofficial Opinion 99-5

October 15, 1999
To: 

Representative
District 163

Re: 

Persons sentenced to community service may be utilized to assist counties or municipalities in preserving and protecting abandoned cemeteries or burial grounds.

You have requested my opinion as to whether persons sentenced to “community service,” as that term is defined in O.C.G.A. § 42-8-70(a)(2), may properly be utilized in the care of “abandoned perpetual care cemeteries.” For the reasons stated below, it is my unofficial opinion that such persons may be used by counties or municipalities in preserving and protecting abandoned cemeteries or burial grounds.

“Community service” has been defined by the General Assembly as “uncompensated work by an offender with an agency for the benefit of the community pursuant to an order by a court as a condition of probation.” O.C.G.A. § 42-8-70(a)(2). The use of community service labor is prohibited “for any purpose resulting in private gain to any individual.” O.C.G.A. § 42-8-70(b).

An “abandoned cemetery” is defined as “a cemetery which shows signs of neglect including, without limitation, the unchecked growth of vegetation, repeated and unchecked acts of vandalism, or the disintegration of grave markers or boundaries and for which no person can be found who is legally responsible and financially capable of the upkeep of such cemetery.” O.C.G.A. § 36-72-2(1). Moreover,

Counties . . . and municipalities . . . are authorized, jointly and severally, to preserve and protect any abandoned cemetery or any burial ground which the county or municipality determines has been abandoned or is not being maintained by the person who is legally responsible for its upkeep, whether or not that person is financially capable of doing so, to expend public money in connection therewith, to provide reimbursement of such funds by billing any legally responsible person or levying upon any of his property as authorized by local ordinance, and to exercise the power of eminent domain to acquire any interest in land necessary for that purpose.

O.C.G.A. § 36-72-3.

The General Assembly has declared that “human remains and burial objects are not property to be owned by the person or entity which owns the land or water where the human remains and burial objects are interred or discovered, but human remains and burial objects are a part of the finite, irreplaceable, and nonrenewable cultural heritage of the people of Georgia which should be protected.” O.C.G.A. § 36-72-1(a). Thus, it appears clear that the maintenance of such abandoned cemeteries or burial grounds by the counties or municipalities in which they are discovered does not inure to the benefit of any private entity or individual, but rather to the people of Georgia as a whole.

It is my opinion that persons sentenced to community service may properly be utilized to assist counties or municipalities in preserving and protecting abandoned cemeteries or burial grounds.

Prepared by:

CHRISTOPHER S. BRASHER
Senior Assistant Attorney General


1 A “perpetual care” cemetery is one whereby the care and maintenance of the grounds and buildings is provided for by means of an irrevocable trust fund established for that purpose. See O.C.G.A. § 44-3-134. For purposes of this Opinion, it is assumed that the cemeteries about which you inquire do not have such trusts established for their care and maintenance.