Valley councilman, state Senate candidate Al Merkel under investigation again for alleged misuse of social media

The city of Spokane Valley has opened another investigation into Councilman Al Merkel, this time over complaints he is actively misusing social media.

Councilwoman Jessica Yaeger filed an official complaint against the councilman June 11, alleging Merkel is blocking members of the public from viewing his posts and is not properly keeping records of his social media activity as required by the Public Records Act.

Merkel, who is running to represent Spokane Valley and the rest of the 4th Legislative District in the state Senate, said the complaint is another attempt by his fellow council members and city administrators to silence him and attack him.

Yaeger said the crux of her complaint centers around Merkel not adding his Nextdoor account to Pagefreezer, the service the city uses to document the social media activity of its elected officials, which can be considered public records.

She believes that is a violation of Washington’s Public Records Act, and the social media policy in the governance manual for the Valley’s city council, which mandates the use of an official city council account for all city-related social media activity and connecting those accounts to Pagefreezer.

Merkel maintains it is a personal account and therefore does not need to be connected to Pagefreezer, and includes a disclaimer at the end of most of his posts that states the content within does not reflect the view of the city or the city council.

The city’s social media policy was adopted in December by the previous iteration of the city council, and it governs council member social media accounts, both personal and professional. It was updated most recently in April as part of a number of changes to the governance manual, changes that drew their own challenge from Merkel.

The U.S. Supreme Court recently ruled public officials could be held liable for violating the First Amendment rights of their critics if they block them or delete their comments on social media.

The court ruled in two cases involving lawsuits from constituents blocked from social media accounts belonging to public officials: O’Connor-Ratcliff v. Garnier in which two parents sued school board members in Southern California, and Lindke v. Freed, in which a man sued the city manager in Port Huron, Michigan.

The court laid out a two-part test for future cases involving similar incidents that can be used to examine when a public official’s use of a personal social media account crosses the line into government action and must be viewable to the public. The official must have actual authority to speak on the government’s behalf and the official purports to exercise that authority when posting on social media.

The newest complaint

Yaeger alleges Merkel is reporting dissenting comments under his posts to his personal page and on “Spokane Valley Politics and Government,” a group he started and moderates, to essentially get them deleted. Merkel is the primary user of the 90-member group, authoring 18 of the last 20 posts.

Merkel is heavily active on Nextdoor, where he posts regular recaps of council meetings and actions through the perspective of his own beliefs and opinions on the matters.

“This is another clear case of council members using rules they created to target me, a city administration that is obviously biased against me participating in that targeting, and both the City and the Council wasting your tax money to attack me,” Merkel said of the investigation in a written statement.

Merkel denied reporting posts and comments from others to get them removed, and noted Nextdoor does not have a block function that prevents someone from viewing his posts or activity. Blocking someone on Nextdoor only prevents them from sending direct messages to a user. He said his group is open to everyone, so there is nothing preventing anyone from participating.

He also edits his posts, Yaeger said, and she worries Merkel’s actions may open the city up to lawsuits related to record retention and violating First Amendment rights.

“The residents of Spokane Valley and the people who depend on us for transparency don’t get that from him,” Yaeger said.

Merkel said he believes the complaint is an attempt to shut down his Nextdoor activity, and his politics page, based on some interactions he’s had with Yaeger’s husband Scott Buettner on the platform.

Buettner has reported a number of Merkel’s posts in the group as “public shaming,” which is not allowed on Nextdoor, according to the app’s terms of use. Most of the reported posts could be construed as shaming Merkel’s fellow council members, according to screenshots of the reports provided by Merkel.

“Public shaming has no place on Nextdoor,” the app’s guidelines read. “Whether it’s directly or indirectly targeting a neighbor, a public figure, or the victim of a crime, shaming others is harmful and uncivil.”

As the moderator of the politics group, Merkel is forced to review each post that gets flagged or the group could be shut down for lack of moderation, according to Nextdoor’s policies.

Merkel said he believes Yaeger and Buettner are attempting to have the page shut down by flagging all of his posts.

He told Buettner in a Nextdoor message Friday to “stop maliciously reporting posts in the politics group,” according to a screenshot of the interaction Merkel provided. “You are free to post your positions and opposition on the posts, but I will have to ban you if you go around reporting everything for no reason.”

“I report things as I see fit,” Buettner responded. He added that threatening to ban him “for my interpretation of the rules is very inappropriate but thanks for reaching out.”

Yaeger said the complaint is in no way an attempt to stifle Merkel’s speech. She is disappointed to have to spend more city money on another investigation, but said it needed to be done to protect the city from liability and potentially a large payout down the road.

“No one is trying to stop his First Amendment rights. It is truly to capture what he does say and what he does post on Pagefreezer,” Yaeger said. “So that 10 years from now, the public can come back if they want to and request the records.”

According to the changes to the governance manual approved by the council in April, an outside investigator will now be tasked with looking into Yaeger’s complaint and compiling a report. The council can then decide to take action against Merkel, or Yaeger if it is found to be a “frivolous complaint,” in the form of a verbal reprimand, censorship, or removal from positions on regional boards and committees.

Merkel, as the subject of the complaint, retains the right to request an appeal of the investigator’s findings in front of the city’s contracted hearing examiner, according to the updated governance manual.

This will be the second time the new complaint, investigation and enforcement policies will be followed since they were adopted.

Merkel filed a complaint against Higgins and Mayor Pam Haley, also a candidate for the state Senate seat in the 4th Legislative District, after a hostile exchange during the council’s May 7 meeting.

Merkel alleged Higgins and Haley violated council conduct standards and proceedings by not allowing him to share a dissenting opinion when the contract for the city’s ongoing stormwater and transit project on Sprague Avenue was approved. As Merkel began to state why he did not support the project, Higgins raised a point of order accusing Merkel of campaigning from the dais.

“I absolutely disagree with that,” Merkel interrupted Higgins to say. “This is not campaigning. I’m talking about the project at hand.”

A brief spat between the two council members ensued before Haley made a plea to uphold decorum.

“This is a business meeting with professional people,” Haley said. “We need to act professionally.”

The exchange ended when Deputy Mayor Tim Hattenburg asked Haley to call for a vote on awarding the contract.

The city tasked Seattle-based employment attorney Rebecca Dean with the investigation into Merkel’s complaint. She shared her findings with the city last week, saying Merkel incorrectly invoked the investigation proceedings, Higgins did not violate standards by interrupting with a point of order and that both “behaved indecorously in squabbling,” according to Dean’s report.

She also found Merkel violated the governance manual and Robert’s Rules of Order by not allowing Higgins to explain his point of order, and Haley erred by not asking Higgins to finish explaining his point and then issuing a ruling on it. Dean wrote in her report that Haley’s error was insignificant since the council then voted, “thus ending the debate.”

Prior troubles

This is not the first time Merkel’s Nextdoor account has raised concerns at City Hall.

In January, Higgins asked the city attorney to review social media activity of council members after he learned the city’s logo was being used on Nextdoor, which he believed may have been a violation of the city’s social media policies adopted in December.

Merkel used the city’s logo in a Nextdoor post inviting people to attend one of his first meetings as a recently elected council member. He also started a new group, called “Spokane Valley Politics and Government,” that features the city logo as its identifying photo. He has since removed the logo.

Though the social media policy was approved and became effective on Dec. 19, six current members were violating the rules based on a review of council members’ Facebook pages conducted by The Spokesman-Review at the time. Only Councilwoman Laura Padden wasn’t in violation – she doesn’t have a Facebook page.

There have been more recent violations by Haley and Yaeger that are visible to Nextdoor users, after they have commented or interacted with some of Merkel’s posts to challenge some of his claims. The social media policy prohibits council members from following or interacting with each other.

In March, Merkel was reprimanded by the city council for sharing incorrect information on what happened during an executive session during a council meeting.

An executive session is a closed-doors meeting in which local elected leaders discuss purchases, pending litigation, appointments to positions and charges or complaints against a public official or employee.

Merkel posted on the app after the meeting that the council voted during executive session to purchase a piece of property that will be turned into affordable housing.

While the vote came after the executive session ended, which Merkel later corrected the post to include, the city council determined the attempt to share any information from the executive session was deserving of a reprimand in a 5-2 vote.

Merkel and Councilman Ben Wick were the only dissenting votes.