SPOKANE VALLEY, WA - An investigation into Spokane Valley Councilmember Al Merkel's conduct found Merkel in violation of the City of Spokane Valley Governance Manual and likely in violation of the Washington State Public Records Act.

The City hired an independent, third-party attorney to investigate an official complaint filed by Councilmember Jessica Yaeger on June 11, 2024. The complaint expressed concern over Merkel's use of the social media platform Nextdoor and the potential risk to the City of an elected official not complying with the Washington State Public Records Act, as well as concern over compliance with the City Council's adopted Governance Manual. This is the second outside investigation concerning Councilmember Merkel's behavior since he took office in January 2024.

The new report finds that Councilmember Merkel violated the Governance Manual Social Media Policy by posting content related to the conduct of city government and/or his Councilmember duties on his personal Nextdoor account, rather than on an official City Councilmember account automatically archived for public records compliance. The report also finds on a "more likely than not" basis, common terminology used in most non-criminal court trials, that several of Councilmember Merkel's posts on his personal Nextdoor account are public records and, due to Merkel's actions, are not able to be retained by the City to ensure Public Records Act compliance. The report also concludes that (1) failure to produce such public records when requested is a probable violation of the Public Records Act, and (2) Councilmember Merkel acted inconsistent with his Councilmember duties and legal requirements by altering a declaration to state that he does not have responsive personal social media posts/messages "that are public records."

Merkel has stated that the content on his personal Nextdoor account is not city business nor public records and has been unwilling to release his records. However, the report outlines several categories of Merkel's social media posts between March 1 and July 18, 2024, that are conducting city business and, therefore, more likely than not public records, including some content that was reported at Council meetings. Topics include:

• Discussions about City Council debates
• Complaints about other Councilmember's actions and positions on city business
• City investigations into formal allegations against Merkel
• Merkel's opinions and positions on a variety of issues before the Council
• Merkel's promise to address some followers' questions about a specific city issue
• Requests for followers to send an email to his city email address
• Surveys about city projects and the city budget

Public record laws ensure the transparency of government and empower the public to hold elected leaders accountable. The Washington State Public Records Act requires all city records created or used by staff and/or elected officials in furtherance of their city duties to be retained and made available upon request. Violations of the Public Records Act may subject municipalities to significant liability, including daily monetary penalties and attorney's fees, and can erode public trust and reduce accountability. Since January 1, 2024, the City has received 48 requests for public records related to Councilmember Merkel, of which 12 are specific to the Councilmember's personal social media account.

Councilmembers are supported in using social media to interact with their constituents about city business in a way that ensures compliance with state law. Per the Council's adopted Governance Manual, Councilmembers may discuss city business on social media, but only on an official Councilmember-specific account, which Councilmember Merkel is not currently using. These accounts are established with the Councilmember's official city email and registered with the city's social media archiving platform. This ensures that all content is retained in compliance with the Public Records Act, including posts and comments that may have been hidden or deleted.

"Transparency and adherence to state laws is and always has been a priority for the City and we are proud of our impeccable record over the years," City Manager John Hohman emphasized. "The Governance Manual provides the tools to allow Councilmembers to interact with constituents via social media while guaranteeing transparency, accountability to our taxpayers and strict compliance with the state Public Records laws. In order to mitigate unnecessary risk and avoid significant financial liability to the City, we would like to see Councilmember Merkel follow the Governance Manual and the law."

As a new Councilmember, Merkel received Public Records Act training three times since being elected, including from the Washington Cities Insurance Association (WCIA), Association of Washington Cities (AWC), and the Spokane Valley city attorney. In addition, City staff have advised Councilmember Merkel on multiple occasions of the need to preserve and provide posts regarding city business as they constitute public records.

Per the city Governance Manual, Councilmember Merkel has seven business days to appeal the findings to a hearing examiner. After the appeal period, the Council will review the findings and may take further action.

MEDIA CONTACT
Jill Smith, Communications Manager
[email protected]
c: 509-953-6695

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