Spokane Valley Councilman publicly admonished, stripped of seat representing city after violating council standards, state law

Spokane Valley Councilman Al Merkel will no longer be representing the city on regional boards and committees following a failed appeal of an investigation that found he likely violated public records law.

Merkel’s fellow members on the city council voted unanimously to strip him of committee assignments, and to publicly censure Merkel – a formal condemnation for his actions – in a special meeting Dec. 19.

The punishments are among the most severe available to the council when disciplining a fellow board member, and will remain in effect for the remaining three years of Merkel’s term.

“The actions perpetuated by council member Merkel were obstinate and egregious, and he could have stopped this at any moment by complying with the governance manual,” Councilwoman Jessica Yaeger said ahead of the council’s vote.

The decision served as a conclusion to a months-long ordeal involving Merkel’s use of the social media platform Nextdoor, which Hearing Examiner Andy Kottkamp found in his appeal ruling could place the city in legal hot water.

In June, Yaeger filed a complaint against the councilman for allegedly blocking members of the public from viewing his posts and failing to keep proper records of his activity on the app, in violation of the council’s governance manual and Washington’s Public Records Act.

An independent investigation conducted by Seattle-based attorney Rebecca Dean found Merkel’s posts on the platform reached the 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.

Spokane Valley relies on a software called PageFreezer to log social media activity in the event of a public records request, which the city is legally required to do their due diligence to provide. Merkel, an avid Nextdoor user for years, has refused to add his account since joining the council last January. That means those posts have not been properly logged, the investigation found.

In the appeal decision, Kottkamp upheld the investigation’s finding Merkel violated the council’s standards and public records law in more than a few ways.

Kottkamp determined several of Merkel’s posts could be considered conducting or discussing city business, making them public records; that Merkel had edited his posts, as well as comments from members of the public on his posts; and that Merkel had failed to provide those open records, both in failing to sign up for PageFreezer and by lying about his search efforts and denying possession of records in legally required paperwork for record requests.

“Violations of the Public Records Act subject municipalities to significant liability risk, including daily monetary penalties and attorney’s fees, and can erode public trust and reduce accountability,” the city said in a release following the hearing examiner’s report and the council decision.

As the council discussed what action to take against Merkel, he refused their requests to recuse himself due to his conflict of interest as the focus of the deliberation and vote. Instead, the councilman remained at the dais, with his microphone cut off, as his fellow board members received a summary of the hearing examiner’s findings and discussed next steps.

Yaeger lamented the amount of city tax dollars spent on the investigation and appeal process, saying it should have been put toward the council’s long-term goal of bolstering the city’s police force. She said the city’s taxpayers would have saved thousands if Merkel had followed the records training he was provided and signed up for PageFreezer, which costs the city about $50 per account, she said.

The city incurred more than $186,000 in costs related to Merkel last year, according to a city report included in a Dec. 10 meeting. The costs include more than $96,000 toward “actions take to protect city employees,” nearly $72,000 in “actions take to protect the city from legal risk” and $14,000 for “nonproductive uses of staff time,” as the city has put the cost of staff responding to the 57 public record requests related to Merkel filed last year.

“He’s not a victim, and he’s made calculated and thoughtful decisions to ignore his training, state law and repeated attempts to curtail his behavior,” Yaeger said. “He’s attempted to make himself look like a victim, but the victims here are the citizens of the Spokane Valley, the taxpayers who’ve had no choice but to fund this investigation into his behavior in order to protect the city.”

Yaeger and councilwoman Laura Padden called for the strictest punishments possible.

“I think it’s been really an embarrassment for the city,” Padden said. “It’s been willful, and it needs to stop, and we need to impose what we can.”

Mayor Pam Haley concluded the council’s comments by stressing the city is financially and legally liable for completing public record requests, which is why multiple trainings are provided to city councilmembers by Spokane Valley and the regional boards they serve on.

She warned that if a lawsuit is filed against the city related to Merkel’s failures to adhere to public records law, it will result in more wasted tax dollars.

“Citizens will have to pay it,” Haley said. “We’ve already wasted $200,000 trying to protect you, the citizens, from increased tax money that you will have to pay if they find against us.”

Merkel responded with many of the same accusations he leveled throughout the year when facing criticism from his peers or the public. He called the investigation a “sham,” and said city staff, his fellow council members and the investigator were biased against him.

Merkel included Kottkamp in the accusation this time around, saying he was “a hired hand for the city manager, rubber stamping decisions made behind closed doors.”

Kottkamp, for years, has provided hearing examiner services for seven counties and 14 cities in Washington, as his practice website details. Merkel’s remarks about the over-30-year career attorney were in stark contrast to his thoughts about Kottkamp prior to the decision.

As he exited the hearing in front of Kottkamp in October, Merkel told The Spokesman-Review he thought Kottkamp “did an excellent job.”

“I think that the hearing examiner was very fair and thoughtful and considerate of the fact that I’m not a professional lawyer,” Merkel said at the time.

In his dissent to the council decision, Merkel went on to say he would be adding his Nextdoor account to PageFreezer under protest, while continuing to rebuke the investigations findings confirmed by the hearing examiner that his posts constitute public records.

Merkel also accused his fellow council members of wasting the public’s time and resources “on this charade,” which would include the appeal he requested, as well as accusing the council and city administration of “neglecting the issues that matter most to residents.”

He finished his allotted speaking time by pleading to Spokane Valley voters to side with him when some of his peers are up for re-election in November.

“The people of Spokane Valley will have a choice to make,” Merkel said. “They will decide whether this sham investigation and baseless accusations against me deserve their attention – or whether the real crimes are the council’s failure to protect public safety, its reckless financial mismanagement, and its waste of taxpayer dollars on misguided projects.”

Haley responded with her own message to Valley residents.

“We were absolutely ready to work with him till he said he came on council to burn the city down, and it appears that he’s going to continue to do that,” Haley said. “So I just hope that you guys understand that when he does burn the city down, you’re going to pay for it, as am I.”