Valley City Council is representing itself in appeal of investigation findings

Spokane Valley City Councilman Al Merkel had his hands full Thursday when he decided to represent himself in his appeal of an independent investigation that found he likely violated city policies and public records law .

Dressed in his signature hunter orange, Merkel served as appellant, witness and counsel as hearing examiner Andy Kottcamp heard his case at Spokane Valley City Hall.

The hearing, like the previous complaint and investigation, focused on ongoing concerns surrounding Merkel’s activities on the social media platform NextDoor.

In June, Councilwoman Jessica Yaeger filed a complaint against her fellow council member for allegedly blocking the public from seeing his posts and failing to keep proper records of his activity on the app.

An independent investigation conducted by Seattle-based attorney Rebecca Dean found that Merkel’s posts met the legal standard of proof, that they were “more likely than not” to be open records and that they were not properly logged as required by the Public Records Act. Merkel appealed those findings last month.

The saga is the first time the council has had to follow the new disciplinary procedures it introduced into the council’s governance handbook in April.

Under those rules, the investigator and her counsel were given the opportunity to present Kottcamp with the evidence that supported Dean’s findings, and Merkel was allowed to present evidence and testimony in his defense.

Merkel was given the opportunity to hire her own representation after the city council voted last month not to cover the costs, but the city council decided against it. He said the vote was an attempt by his fellow council members and the city to “pressurize me into spending more money on lawyers.”

“It’s a waste of time to make me spend money on a lawyer,” Merkel said, even though she had filed an appeal. “The idea here is to punish me for being elected and to punish all citizens for questioning things that are going on here.”

Dean, represented by Spokane-based attorney James King, who assisted in the investigation, took the stand at the start of the hearing to defend her process and her work.

Dean has practiced law in the state since 1988 and has run her own law firm focused on investigations since 2006. She said much of her work is for public authorities, municipalities and private companies seeking an impartial assessment of the validity of a complaint.

“If necessary, I interview witnesses, evaluate documents and conduct legal research,” Dean said during her testimony. “With the aim that at the end of the day I have given a fair and balanced assessment, be it from a factual or legal point of view.”

Dean spent nearly two hours outlining her process and relevant Washington case law that guided her review of Merkel’s NextDoor activities, which included individual review of more than 300 posts Merkel had made since the start of the year. King held a large sheaf of papers with copies of the posts printed on them to demonstrate the scope of her review.

During his cross-examination, Merkel tried to refute the notion that Dean was an impartial investigator, and he visibly struggled to adhere to the legal procedures and boundaries of the hearing. That led to more than a few objections from King and instructions from Kottcamp to stay on topic. Kottcamp also asked Merkel to stick to asking questions instead of expressing her own thoughts.

Dean’s patience visibly wore thin after Merkel, who repeatedly tried to paraphrase or restructure Dean’s answers to fit his narrative, started again.

Merkel had asked her whether the information in his contributions in which he expressed his opinion on council meetings could be found elsewhere. The attempt to illustrate his activity could be viewed as a “small comment” and therefore does not reach the level of detail that could be considered conducting city business.

Dean, as in her report, took the opposite view, adding that this was beside the point. She was asked to draw a conclusion about whether Merkel most likely violated city policy. Only in the broader sense would Merkel and the city violate the Documents Act.

“I think I’ll phrase what you just said in a different way,” Merkel began after Dean’s response.

“No, please don’t do that,” Dean interjected. “I mean, if you have a question, ask me a question.”

This led to a loud admonishment from Kottcamp.

“Okay, I’m going to stop this right now,” Kottcamp said. “You don’t scold him. You don’t tell him what to do.”

For Merkel, the exchange was enough evidence that Dean held a negative opinion of him, even though she said she had not known about him, met him or spoken to him before this summer. Thursday’s hearing was their first in-person meeting.

Aside from the brief back and forth and some objections about Merkel’s legal inexperience, the hearing was relatively banal. Not much came out that wasn’t already detailed in the complaint, Dean’s investigation findings and interviews with Merkel about his thoughts on the ordeal.

Merkel used half of the hearing to testify on her own behalf, repeating his earlier comments that the account was a personal “campaign” account that straddled the line between a personal and an official social media post is unclear and that he uses a disclaimer at the end of his posts to show that they reflect his opinion.

“For me, the posts I publish on NextDoor are just that: I address the public, ask or tell the public what I think about different things, what I believe in different things, what my political approaches will be.” said Merkel said. “Just like in any election campaign, you should be allowed to do these things.”

Merkel also called Valley resident and supporter Dan Allison as a witness to testify that he did not view Merkel’s post as a city matter. However, it is unclear how much weight Kottcamp will give Allison’s statement, as King advised him that Merkel had failed to connect Allison’s comments to the specific contributions being considered and that Allison’s thoughts were only representative of be himself.

If Kottcamp sticks to the finding that Merkel is violating the law, he could face a verbal reprimand, public censure or removal from the council committees or regional panels to which he has been appointed. Any action would require a majority plus one vote from his fellow council members.

According to the governance manual, Merkel reserves the right to appeal Kottcamp’s decision and any disciplinary action taken by the council to Spokane County Superior Court. He wouldn’t speculate Thursday about whether he would take that action if he disagrees with Kottcamp’s decision.

Kottcamp will receive written closing arguments from both parties in the coming weeks and has until early December to make a decision.