Valley councilman represents himself in appeal of investigation findings

Spokane Valley Councilman Al Merkel had his hands full Thursday, as he elected to represent himself in his appeal of an independent investigation that found he likely violated city policies and public records law.

Donned in his signature hunter-orange, Merkel filled the role of appellant, witness and legal representative as hearing examiner Andy Kottcamp heard his case at Spokane Valley City Hall.

The hearing, just as the complaint and investigation that preceded it, centered around the ongoing concerns around Merkel’s activity on the social media platform NextDoor.

In June, Councilwoman Jessica Yaeger filed a complaint against her fellow council member for allegedly blocking members of the public from viewing his posts and failing to keep proper records of his activity on the app.

An independent investigation conducted by Seattle-based attorney Rebecca Dean found Merkel’s posts reached the legal burden of proof of being “more likely than not,” open records, and that they were not being properly logged as required by the Public Records Act. Merkel appealed those findings last month.

The saga is the first time the council has had to follow the new disciplinary proceedings they voted into the council’s governance manual in April.

Under those rules, the investigator and her legal counsel were given the opportunity to present Kottcamp with the evidence supporting Dean’s findings, and Merkel was allowed to present evidence and testimony in his defense.

Merkel had the option to hire his own representation after the city council decided not to cover the costs last month, but the councilman opted not to. He said that vote was an attempt by his fellow council members and the city to “squeeze me into spending more money on lawyers.”

“It’s just a waste of time to get me to spend money on a lawyer,” Merkel said, despite filing the appeal. “The idea here is to punish me for being elected, and punish any citizens for questioning things that are going on here.”

Dean, represented by Spokane-based attorney James King, who assisted with the investigation, took the stand to defend her process and work at the start of the hearing.

Dean has practiced law in the state since 1988, and has run her own practice focused on investigations since 2006. She said a lot of her work is for public agencies, municipalities and private companies seeking an impartial assessment of the validity of a complaint.

“If I need to, I interview witnesses, I assess documents, I conduct legal research,” Dean said during her testimony. “With the objective that at the end of the day, I have rendered a fair and balanced assessment, either of factual or legal issues.”

Dean spent nearly two hours laying out her process and the relevant Washington case law that guided her review of Merkel’s NextDoor activity, which included individually examining more than 300 posts Merkel’s made since the start of the year. King held a large bundle of papers, on which were printed copies of the posts, to demonstrate the lengths of their review.

During his cross -examination, Merkel attempted to counter the idea Dean was an impartial investigator, and he noticeably struggled to adhere to the legal procedures and boundaries of the hearing. That led to more than a few objections by King, and directives from Kottcamp to stay on topic. Kottcamp also implored Merkel to stick to asking questions, instead of sharing his own thoughts.

Dean’s patience visibly wore thin after Merkel, who repeatedly would attempt to paraphrase or restructure Dean’s answers to fit his narrative, began to do so again.

Merkel had asked her if the information in his posts in which he gives his take on council meetings could be gleaned elsewhere, attempting to illustrate his activity could be considered “minor commentary,” and therefore did not reach the level of detail to be considered conducting city business.

Dean argued the opposite, as she did in her report, and added that it was beside the point. She was asked to reach a conclusion on whether Merkel more likely than not violated city policies. It’s only by extension that Merkel and the city would then be in violation of public record law.

“So I guess to kind of rephrase what you just said,” Merkel started with after Dean’s response.

“No, please don’t do that,” Dean interjected. “I mean, if you have a question, ask me a question.”

That led to a loud admonishment from Kottcamp.

“OK, I’m going to stop that right now,” Kottcamp said. “You don’t scold him. You don’t direct him what to do.”

For Merkel, the exchange was evidence enough that Dean holds an unfavorable opinion of him, despite her testimony that she had not known of him, met him or spoken to him prior to this summer. The hearing Thursday was their first face-to-face meeting.

Aside from the brief back-and-forth, and a number of objections over Merkel’s legal inexperience, the hearing was relatively mundane. Not much came out that was not already detailed in the complaint, Dean’s investigative findings and interviews with Merkel on his thoughts on the ordeal.

Merkel used his half of the hearing to testify on his own behalf, echoing his past comments that the account is a personal “campaign” account, that the line between a personal and official social media post is indistinct, and that he uses a disclaimer at the end of his posts to show they are his opinion.

“For me, these posts that I post on NextDoor are exactly that, campaigning to the public, asking or telling the public what I think about different things, what I believe on different things, what my policy approaches are going to be,” Merkel said. “Just as in any campaign, you should be allowed to do those things.”

Merkel also called Valley resident and supporter Dan Allison as a witness to testify that he does not view Merkel’s posts as city business. It’s unclear how much weight Kottcamp will give Allison’s testimony, however, as King pointed out to him that Merkel failed to connect Allison’s comments to the specific posts being considered, and that Allison’s thoughts are only representative of himself.

If Kottcamp upholds the finding Merkel is in violation, he could face a verbal reprimand, public censure or removal from the council committees or regional boards he’s appointed to. Any action would require a majority-plus-one vote from his fellow council members.

Merkel reserves the right to appeal Kottcamp’s ruling and any disciplinary actions taken by the council in Spokane County Superior Court, according to the governance manual. He would not speculate Thursday if that is an action he would take if he disagrees with Kottcamp’s decision.

Kottcamp will receive written closing arguments from both parties in the coming weeks, and has until early December to issue a ruling.