Spokane Valley’s lawsuit against Al Merkel moves forward after first day in court

After an hourlong initial hearing in the ongoing lawsuit filed by the city of Spokane Valley against Councilman Al Merkel, Spokane Superior Court Judge Rachelle Anderson said it’s clear she has her work cut out for her.

“Obviously I can tell from the declarations and the volume of the materials I reviewed for these motions, there really is a lot at stake,” Anderson told the courtroom. “And I’m balancing everything.”

Anderson issued decisions on a pair of motions Friday in the case brought forward by the city against Merkel in an ongoing public records dispute that allowed the lawsuit to move forward while granting some limited privacy protections to Merkel. While attorneys on both sides have been entering materials into the court record ad nauseam, Friday was the first tangible movement since the lawsuit was filed months ago.

The Spokane Valley City Council took the extraordinary measure of suing one of their members in February, citing a failure to cooperate after an independent investigation into a complaint found Merkel in violation of the Washington State Public Records Act and relevant city policies last September. Merkel then filed an appeal with the city’s hearing examiner, Andy Kottkamp, who upheld the investigation’s findings.

Months after Kottkamp weighed in, city leaders said they still had not received complete copies or access to Merkel’s NextDoor records, leading to the lawsuit. The city states it needs Merkel’s compliance in order to meet their public record requirements. If the city were found in violation of the state’s Public Records Act for not being able to provide Merkel’s materials to the public, it could be responsible for hefty court-ordered fines.

Merkel and his attorney, Patrick Kirby, asked the court to dismiss the lawsuit, citing a belief the city had no standing and only offered “hypothetical, speculative risks” and damages related to not fulfilling the municipality’s requirements to produce public records.

“This lawsuit is a con job,” Kirby said.

Attorney Reid Johnson, who’s representing the city in the case, countered that state case history supports the city’s argument of harm evidenced by the administrative burdens incurred already as a result of Merkel’s lack of compliance with the investigation findings , and the potential legal harm to the city for not fulfilling its record-producing obligations.

Anderson denied the motion to halt the suit, noting there was a “real high standard” that Merkel and Kirby would have needed to meet.

Anderson’s second decision Friday was in response to a motion to prevent the release of Merkel’s records he deems private.

As part of their attempt to stop the release of Merkel’s records ahead of the hearing, Merkel and Kirby repeated the councilman’s claims of a conspiracy to harass and persecute him by his peers on the council, city administrators, staff members and the third-party attorneys contracted to investigate the complaints against him.

“The compelled disclosure of my electronic private communications will subject me and my political associates, supporters, and groups to further harassment, intimidation, and reprisal, which will affect our physical well-being, political activities and economic interests, and have a chilling effect on the willingness of potential members to associate with me and my political group,” Merkel argued in his statement.

Johnson countered that Merkel was attempting to obstruct the discovery process by having the court weigh in on every single email, social media post or direct message to determine if it was public record or private. He also alleged Merkel’s claims in his statement in favor of restricting the release of records were misleading and outright false.

“Each of these arguments from Mr. Merkel are based on a complete misinterpretation of the complaint itself, or a complete misinterpretation of the law,” Johnson told the court.

Anderson reached a middle ground, requiring Merkel to produce the materials that are public records and a log describing what and why certain materials were determined private. It prevents the city from releasing any of the materials to the public as part of responses to record requests as the lawsuit is ongoing.

Anderson also granted Johnson the ability to review shared materials with the city while also granting him permission to review records claimed to be private with the stipulation it will be for attorney’s eyes only. She also told Merkel that she’ll expect an explanation when the time comes as to what he deems private.

“When you are sharing things with a group of 45 people, I’m not sure how private that is,” Anderson said. “These are things that will need to be fleshed out to me.”

What was at play, but not necessarily considered Friday

Much of the concerns not heard in court Friday stem from Merkel listing instances since he joined the council in January 2024 that he said show a “pattern of harassment, political targeting, and abuse of government authority.” Those examples included members of the public saying they’d “come after him” during public comment, an anonymous threatening direct message on social media and a private investigator lobbing accusations about his prior workplace during a council meeting.

Some of Merkel’s examples more obviously lacked context, or misrepresented interactions and correspondence as the city alleges.

For example, Merkel claimed the workplace investigation was initiated by City Manager John Hohman, despite the city’s release last year of the complaints filed by an employee and an outside workplace safety consultant alleging he was discriminating against women and causing safety concerns in the workplace. Merkel also pointed to city code infractions and warnings he’s received, despite those complaints being filed by his neighbors, starting years before he announced his candidacy and eventually joined the council.

Merkel outright claimed Hohman and Konkright threatened to sue the councilman for testifying against proposed development at the old Painted Hills Golf Course at a land use hearing last year, and claimed Hohman visited the properties of two of his vocal supporters for “prioritized enforcement” of city code violations, “bypassing hundreds of citizen-reported cases.” While Merkel did not provide supporting materials or evidence for either claim, the city provided a litany of materials in its motion to strike Merkel’s claims from the record.

Hohman said he had a conversation with Merkel asking him not to testify at the meeting in support or opposition of the development to limit legal risk to the council, but at no point was a lawsuit threatened. He and Konkright provided emails and written exchanges to the court that were provided to all council members as legal advice on how testimony in land-use decisions could lead to legal risk.

Building Official Jenny Nickerson and Hohman denied Merkel’s code enforcement claims. Included in her statement were the anonymous complaints filed by members of the public against the two property owners, and all of the correspondence between her department and the owners to bring the properties up to code without any citations or fines issues. She confirmed Hohman did not direct them to “find a violation,’ did not visit either home and did not speed up the investigations into the complaints.

“No such prioritization occurred,” Nickerson wrote. “Indeed, when Code Enforcement initiated its investigation, there were no older complaints for which investigations had not already begun.”