Spokane Valley Councilman Al Merkel found ‘likely in violation’ of Public Records Act

An investigation into Spokane Valley Councilman Al Merkel’s social media platform has concluded that he is “likely in violation of the Washington state Public Records Act.”

Councilwoman Jessica Yaeger filed an initial complaint against Merkel earlier this year after noticing that he had been using social media platform Nextdoor as a form of city-related communication without the proper post documentation software. This meant that posts that may have been otherwise classified as public record were not logged.

“We have that right under our laws – to request records from our government,” Yaeger said. “And so he was not complying with that and he was doing business on his Nextdoor account.”

Merkel was cited in the investigation as hosting surveys related to city projects and soliciting comments about budgeting proposals and homelessness from his followers.

Having potential public records slip through the cracks like this puts the city at significant financial risk, Deputy City Manager Erik Lamb said.

“The Public Records Act is a strongly worded mandate, really to ensure that governments remain transparent and the people know what’s going on,” Lamb said. “And so to that end, there are significant financial penalties that the Public Records Act allows for violations.”

The investigation, carried out by a third party attorney, determined that some of Merkel’s posts on Nextdoor were “more likely than not” public records, and have not been properly archived as such.

Merkel argues that the line between a personal and official social media post is indistinct. He said that the investigation reflects only the third party attorney’s opinion, and that he believes that he is not in violation of the Public Records Act.

“What does that mean – I was ‘found likely,’ ” Merkel said. “Why is the city’s paid consultant’s opinion relevant?”

Yaeger takes issue with Merkel not complying with what she described as a “really simple requirement.”

“All he really had to do was use (the post logger) on his account,” she said. “This is not about freedom of speech. This is about being accountable to your voters to be transparent in your business dealings, and that’s what is required of us in the law.”

Merkel has seven business days to appeal the findings of the investigation.

Verbal reprimand, public censure, or removal from council-appointed committee are all actions that could be taken against Merkel by the council after the appeal period, should he not appeal.

Merkel said that while he would love to appeal, he sees the conflict as political theater happening on the citizens’ dime. He has posted a poll on Nextdoor, along with on his website, to see which path citizens would prefer him to take.

The invoice for the investigator’s services has not yet arrived, according to city officials.

In regards to the existing public records requests pertaining to Merkel’s social media, Lamb said that the city will take “really all action that we need to ensure we are complying with the Public Records Act and state law.”

“This is a fundamental principle and belief of the city’s,” Lamb said. “To comply with the law, to be open and transparent, and to ensure that those that request public records get those public records.”