(The Center Square) – Spokane Valley officials voted unanimously Thursday to censure and remove Councilmember Al Merkel from a committee after a hearing examiner supported findings that he violated city policy.
The decision follows a complaint by Councilmember Jessica Yeager in June, alleging Merkel violated the Valley’s Governance Manual with his social media activity on Nextdoor. She later expanded the complaint, alleging his actions violated the Washington Public Records Act.
The investigation found Merkel violated the manual’s social media policy and that his posts are “more likely than not” public records. While he appealed this, representing himself after the city council refused to provide an attorney, the hearing examiner supported the findings last week.
“I’m asking the council to consider the harshest penalties that’s available,” Yeager said to her peers on Thursday. “I would also encourage us to pursue, the city, an additional legal route through our court system to ensure the city protects its citizens and mitigate the risks.”
The complaints alleged that Merkel discussed city business on his account, which isn’t tied to a city email or the archiving system for public records. The investigation and hearing examiner upheld this and found that Merkel also edited some of those posts, failed to produce them when requested and didn’t provide sufficient evidence of a reasonable, good-faith search.
City Attorney Kelly Konkright said any posts to Merkel’s personal account aren’t archivable, creating liability if deemed public records regarding city business. Still, despite failing to prove so, Merkel denied that his posts were public records throughout the process.
The investigation included hundreds of screenshots, including posts where Merkel discussed city business, though at least one was prior to him taking office. Merkel painted the investigation and process as partial and biased, which the hearing examiner ruled as “meritless.”
“The list goes on,” Councilmember Laura Padden said. “Frankly, Councilmember [Merkel], your interpretation doesn’t count for much because it’s the courts that interpret the laws, and the case law and decisions from the Washington State Supreme Court are all against you.”
The examiner’s report included recommendations for corrective action: a verbal censure and if Merkel’s behavior continues, a public censure and/or removal from any committee assignments.
Rather than just issuing a verbal censure, the council, with Merkel recusing himself, also voted unanimously to take away his only committee appointment.
Konkright said Merkel received PRA training three times and was also advised repeatedly by the city manager that his posts are likely records. After being asked to produce the records and use a city account, Merkel filed a complaint alleging a hostile work environment.
“Despite my strong objections and under protest, I will register my Nextdoor account with page freezer to bring this issue to a close and end the deflections,” Merkel told his peers. “However, let me be clear: I do not acknowledge this decision as legitimate.”
Merkel called the decision an overreach of power from the council majority that, in his opinion, targets him personally. He thinks this whole process was a waste of time and money all to index information, which he continued to deny were public records.
“The irony here is rich: the very posts they claim to lack access to have repeatedly been presented as part of this record,” Merkel said, “demonstrating that the city has had full access to this information all along.”
According to a Dec. 10 agenda, through this process, prior investigations, complaints and “nonproductive uses of staff time,” Merkel has cost the Valley roughly $186,000 since January.
Mayor Pam Haley said the cost will only increase if people file lawsuits in the future.
“Any reasonable person understands what the Public Records Act says. It’s not anything against him politically, not a bit. We were ready to work with him when he came here, we were absolutely ready to work with him, till he said he came on council to burn the city down,” Haley said. “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.”