What's the state board doing sending threatening letters to a retired consumer advocate?
Which of these is a threat to consumer safety:
- A. A funeral director who dips into customers' prepaid funeral money to buy a new hearse
- B. Funeral homes that rent out their embalming rooms to fly-by-night tissue brokers who dissect bodies and sell them for profit
- C. A retired woman volunteering for a nonprofit organization that helps protect grieving consumers from overspending and fraud
Most people would pick A and B. But on March 19, 2007, the North Carolina Board of Funeral Service apparently thought the most important thing they could do with taxpayer dollars was send a letter to a Funeral Consumers Alliance volunteer threatening her with criminal prosecution for - wait for it - helping a grieving family. Mary Brack, President of the FCA of the Central Carolinas (FCACC), was shocked to receive a letter from NCBFS attorney Stephen Dirksen telling her to "cease and desist from this behavior immediately and take whatever steps are necessary to prevent future representations to the public that FCACC may practice funeral service in North Carolina . . . .North Carolina law provides clear criminal liability for anyone who practices funeral directing without a license" [see attachments below].
What could have provoked such a dire warning? One tiny sentence in an obituary in the Charlotte Observer, "Funeral Consumers Alliance of the Central Carolinas has assisted the family." That's it, a thank-you from a grateful FCA member. An acknowledgment Mary didn't even know about - let alone solicit - until the Board decided to bring the full power of the state to bear on an elderly woman who runs a tiny nonprofit. This outrageous action sparked letters of protest from the national Funeral Consumers Alliance [see letter at left] and the Institute for Justice, a nonprofit law firm in Washington, D.C. Rather than admit their error, the NCBFS has dug in its heels, claiming the right to regulate and possibly cite any citizen who "makes arrangements" with family members, obtains obituary or death certificate information, or publishes obituaries in the media if that person isn't licensed as a funeral director and isn't related to the decedent family. The Institute for Justice has written to the North Carolina Attorney General asking him to advise the Board that free speech rights - including the right to publish obituaries - don't require an undertaker's license [see letter at left].
For readers who don't understand what the fuss is about, funeral directors often believe they have a right to free advertising in obituaries. The typical line at the bottom of a death notice, "Arrangements for the Smith Family provided by Johnson Funeral Home," is a guaranteed advert for the funeral home, which the family usually pays for. Sniffing out the likely origin of the Board's action, Mary Brack wrote to Dirksen, "I feel this obituary was referred to you by an individual funeral director or funeral home that wants no reference to our organization since we educate the consumer on how to spend less money on services . . ." [see full letter at left].
I think that's pretty likely, though Board Executive Director Paul Harris told me that no disgruntled funeral home complained. But he couldn't tell me just exactly why the Board found this action-worthy. He defended Dirksen's letter (indeed, he said he authorized it), and claimed the obituary in question would lead any reasonable person to believe FCACC was representing itself as a licensed funeral home. This is implausible:
- Paul Harris and the NCBFS are very familiar with Funeral Consumers Alliance and its nonprofit work. I've communicated with them on issues of mutual concern, and our volunteers from the Raleigh FCA chapter attend every state board meeting. It's impossible to believe the Board actually thought our Charlotte chapter was running an illicit funeral business.
- Board attorney Dirksen's letter doesn't ask Mary Brack whether she'd solicited or placed the offending acknowledgement in the paper --- it accuses her outright of doing so and of breaking the law in the process.
When I asked Harris why he hadn't just picked up the phone and called Mary, or me, for clarification, he waffled about and then admitted the letter was "perhaps a bit strong." When I asked attorney Dirksen what provoked his letter, and whether he thought the NCBFS had the legal authority to supervise our charitable nonprofit work, his first concern was who I planned to tell:
"Are you going to release this to the media or put it on your site - I know you have a site," he said before refusing to answer my questions and referring me to executive director Harris. I hadn't been planning on it; I had hoped to resolve this amicably. But I don't take kindly to government lawyers who abuse their power and then hide behind protocol to put off legitimate questions. As Justice Brandeis said, sunlight is the best disinfectant, so here's your moment in the sun, Mr. Dirksen.
I then sent a letter [see left] to the NCBFS explaining why their action was uncalled for and far beyond the scope of their legal authority:
- Dirksen claimed "making arrangements" with family members and obtaining or publishing obituary information constituted the practice of funeral directing, but these activities appear nowhere in the North Carolina statutes that define commercial funeral directing. Even if they did, just because funeral directors commonly perform these office functions, that doesn't make it illegal for mere mortals to do so.
- The North Carolina Board of Funeral Service is mandated by law to oversee the practice of funeral service as a profession, for the protection of the public. Gathering or publishing obituary information (remember, Mary didn't even do this) is surely not an instance of practicing funeral service as a profession.
- The NCBFS is authorized by state law to oversee "funeral service establishments and embalming facilities, their operation, and the licenses under which they are operated . . ." Nothing in the law gives the Board the right to monitor or censor the nonprofit activities FCA groups perform.
Even worse, Dirksen's absurdly broad interpretation of the law would give the NCBFS - seven of the nine members are funeral directors, and six of them are nominated by the state's two undertakers trade lobbying groups - the power to cite individuals for helping families gather obituary information, relay it to the newspaper, etc. Under his scheme, the Board could even argue that ministers who help families make funeral arrangements are breaking the law.
Dirksen denies this, and says these points are "unspecified constitutional concerns [that] are largely hypothetical and unsupported by fact and law." Really? Forgive me, but when government lawyers claim the right to limit the legitimate speech of volunteers and citizens, when they demand a professional license for the most mundane activities, and when they train their guns on retired do-gooders, any citizen with a minimal understanding of the Constitution ought to worry.
While Dirksen has backed off (slightly) from the most radical implications of his reading of the law, he's still splitting hairs. Trying to defend the idea that the acknowledgement of FCA published in the obituary could raise honest concerns about unlicensed practice, Dirksen tortures the poor sentence for not being gracious enough:
With respect to your specific concerns to the FCA obituary [sic], review of the obituary language contradicts your characterization of the language in question. At issue is the following language, which is enclosed by photocopy: "Funeral Consumers Alliance of the Central Carolinas has assisted the family." The literal language at question contains not one word expressing gratitude, thanks, appreciation, or emotion of any kind . . .no reasonable person could infer any expression of gratitude from context. To suggest this is "language thanking an organization for its assistance" is post hoc rationalization."
This smells to us like rationalization ad desperatio.
The NCBFS should never have gone after a consumer advocate by pretending they were trying to protect the public from "confusion." This case is a microcosm of the dire problems of protectionism and regulatory capture going on around the nation. Stacked with members from the very industries they're supposed to regulate, state professional boards have a long history of harassing, intimidating, and shutting down anyone they perceive as a threat to the monopoly on profits to which their members think they're divinely entitled. It's bad enough when they use scare tactics to dupe lawmakers into stifling competition that would lower consumer prices. It's unconscionable when they turn on charitable consumer groups whose vision of protecting the public from predatory business practices they ought to share.
Board attorney Dirksen writes, "The Board has further enjoyed a long-standing, cooperative working relationship with local FCA chapters, and the staff recognized that relationship when handling this matter." No, the staff didn't, but the Board has an opportunity to do so now. Do the right thing. Apologize to Mary Brack, admit this whole episode was a mistake, and let's get back to work on taking care of the real consumer threats within the funeral industry. I'd much rather update this page with happy news; good deeds deserve as much exposure as mistakes.
NOTE --- Special thanks to Valerie Bayham of the Institute for Justice for her steadfast support and help. Readers who care about individual freedom --- especially the freedom to make a living without government-endorsed monopoly schemes tarted up as consumer protection --- should pay attention to the extraordinary work IJ does every day. Visit them here .