Investigation into Spokane Valley City Councilman Al Merkel hits snag

The investigation into Spokane Valley city Councilman Al Merkel’s conduct toward city staff is moving forward – just not smoothly.

Merkel said his interview with an outside investigator ended quickly after it began, due to the investigator’s qualms with him inviting a Valley resident to attend and act as a witness.

The most recent conflict involving the newly elected councilman arose Thursday, when he brought John Harding, a Merkel supporter and frequent Valley City Council meeting attendee, to join a virtual interview with Brenda Bannon, the outside investigator tasked with looking into complaints filed against the councilman regarding interactions he’s alleged to have had with city staff.

Bannon, an attorney with the Seattle branch of the Ogletree Deakins law firm, promptly ended the interview after requesting Merkel conduct it alone, to which he indicated he wanted Harding to stay.

Bannon informed Merkel Friday that all other witnesses relevant to the investigation were interviewed alone, in a private space, to protect the integrity of the investigation, according to an email exchange provided by the councilman.

“I tried to explain that to you yesterday, but you remained steadfast in your desire to move forward with the member of the public present,” Bannon wrote.

Merkel, who informed The Spokesman-Review of the conflict and provided emails between himself, City Manager John Hohman and Bannon, said he brought Harding because he has concerns over the reliability of the investigation.

In an attempt to assuage Merkel’s concerns about transparency, Bannon informed him the day of and via email that the interview would be recorded, with his permission, and that he could request a copy of the recording from City Hall once the investigation is completed. She also included that an attorney would be welcome to join Merkel for the interview. She suggested they reschedule for Monday afternoon.

Merkel responded that would not be enough time for him to secure legal counsel, which he said would not be a substitute for a witness since an attorney would not be able to testify.

“To me, having a witness here is very important, given the lack of trust that I have for this process,” Merkel said.

He told Bannon in a response to her next-day email that he wanted an “independent witness” present who could testify to “your questions and my answers as well as your demeanor.” A recording would not be enough, in his opinion.

Harding and other Merkel supporters have arrived to recent City Council meetings wearing orange clothing or armbands to show their support for the councilman.

During public comment, Merkel’s supporters have alluded to what they view as a conspiracy to silence him.

He said he asked Harding to be his witness because he acts in good faith, has experience speaking in public about a variety of issues and he has made it publicly clear he did not vote for Merkel.

Merkel said he is working to secure outside counsel and will participate in the interview if he is allowed to bring a witness.

“An attorney is not a witness; it’s not the same thing,” Merkel said. “What’s really interesting is in her email, she’s listed it as a request. I guess my confusion is, was it a request if I can’t say no?”

Bannon noted in her initial email that Merkel’s cooperation with the investigation is completely voluntary, and that she would prefer hearing from him before the investigation is wrapped up.

‘The lack of trust I have for this process’The councilman said his questions regarding what the complaints allege, who the complainants and other individuals being interviewed are and the authority under which the investigation is proceeding have not been answered.

Hohman provided an overview of the investigation in a statement during the March 5 council meeting, in which he said the complaints described “offensive, hostile or unwelcome interactions” between Merkel and City Hall employees.

Bannon shared with Merkel via email the investigation encompasses “concerns about your alleged communications and behaviors” in the city of Spokane Valley workplace generally, and “alleged treatment of City employees in particular.”

City spokeswoman Jill Smith said the investigation is now in Bannon’s hands as the outside investigator, and therefore the city will not be discussing it until any findings are made available to them.

Hohman has said in emails to Merkel and in his statement earlier this month that the complainants and other interviewees have not been disclosed to protect city employees from further discrimination or potential retaliation.

It also protects the city and Merkel from potential lawsuits; both could be found liable for retaliation even if the original complaints are determined not to be unlawful harassment or discrimination.

The descriptions of the complaints and reasoning behind keeping the investigation information private provided so far are not detailed enough for Merkel, who would like to know when the alleged behavior occurred, who was involved and what the scope of the investigation is.

Hohman used the same liability reasoning when he requested Merkel avoid City Hall except for council business and avoid interacting with any staff members except for Hohman and Deputy City Manager Erik Lamb, while the investigation is ongoing.

“These measures were not intended as any form of disciplinary measure, and I again stress that no determinations have been made regarding the complaints or underlying allegations against Council Member Merkel,” Hohman said in his statement earlier this month. “Instead, these measures were taken to ensure a full and fair investigation without any further disruptions to the work environment.”

Merkel said he did not agree to follow Hohman’s initial request of avoiding City Hall, but alternatives Hohman suggested in a subsequent email have been more manageable.

Hohman suggested that instead of avoiding City Hall entirely, Merkel could use a temporary workspace available to council members while their third-floor offices are under construction, a renovation prompted in part by Merkel’s behavior, according to fellow Valley Councilman Tim Hattenburg. Merkel could also use the conference rooms on the first floor of City Hall, but would need to be escorted by a senior staff member from the entrance to whichever space he wished to use.

Also included in that email was a request Merkel keep the investigation proceedings confidential to “preserve the integrity of the investigation, and to avoid scenarios in which individual memories or perspectives could be unfairly influenced by others,” Hohman wrote.

Merkel said his use of the workspaces, and needing to schedule conference rooms, is no different than what other council members are doing. He does not see them as restrictions.

“I’m not agreeing to be escorted,” Merkel said. “But if he wants to send his staff to follow me, that’s his choice.”