Spokane Valley City Council elects not to provide Councilman Al Merkel legal representation in terse meeting he refused to leave

The city of Spokane Valley will not cover the costs of Councilman Al Merkel’s defense in his appeal of the investigation that found he likely violated public records law.

Discussion of the topic at Tuesday’s City Council meeting highlighted ongoing tensions between Merkel, his fellow council members and City Hall broadly.

The Spokane Valley City Council decided in a 6-0 vote that Merkel will need to provide his own representation for the appeal, which will be brought before the city’s contracted hearing examiner on Oct. 24. The issue stems from the councilman’s use of the social media site Nextdoor to discuss city politics. Merkel’s conflict of interest in the matter precluded him from deliberating or voting on the issue, City Attorney Kelly Konkright said.

Mayor Pam Haley repeatedly asked the councilman to excuse himself from the discussion, citing his conflict of interest, city policy and state laws that prohibit elected officials from using their position to obtain special privileges or being involved in decisions that could impact them.

Merkel refused, saying he didn’t agree with that interpretation of city policy or state law.

In an interview, Merkel said he did not see policies in city code requiring he leave, despite Haley citing the section that states the council should decide when any employee or official may need representation, and that the decision “shall be made without the vote of such member or members of the city council unless the inclusion of such member or members is required for a quorum.”

He doubled down when Haley asked if that meant he disagreed with the interpretation of the state’s Supreme Court, and again when Konkright explained that case law and the governance manual for the council were clear that Merkel was not to participate.

City Manager John Hohman elected to move forward with the discussion with Merkel in the room, saying he expected as much from the councilman.

Hohman noted that Merkel would not be able to participate in the discussion or vote on the matter, and that every other past council member who’s been in a similar position has recused themselves when asked.

“You are not supposed to be participating in this discussion tonight,” Hohman said. “I think it was pretty clear in Pam’s statement that she read. I think it’s clear in state law. It’s clear in the governance manual. But this is par for the course for what we’ve been dealing with this year.”

Hohman would later go on to say that his responsibility as city manager is to manage risk for the city, and that Merkel’s actions have made the past year one of the most challenging to do so since the city’s incorporation in 2003.

Merkel remained at the dais, his microphone muted at Haley’s request, even after Konkright warned the councilman he could be opening himself up to legal action.

“I agree with City Manager Hohman, you are not to participate, and if you continue to do that, you may be subjecting yourself to personal liability under the Revised Code of Washington for those violations,” Konkright said.

Hohman began the discussion with an overview for the city council members of the decision in front of them: who was responsible for the defense fees associated with the appeal. He highlighted that the city already spent a lot on the investigation itself, and the investigation earlier this year that found Merkel has a pattern of harassing city staff.

“I think it’s important for the community to understand the cost of what we’re dealing with here, and the fact that by not following the rules, there’s consequences,” Hohman said.

Konkright explained the steps that brought the council to this point, including the investigator’s findings that Merkel’s social media activity violated not only city policies, but likely state law. That alone provided a basis for the council not to provide Merkel assistance with his defense, Konkright said.

He pointed to the city’s municipal code, which prohibits the city from providing a council member or employee representation when the legal matter involves “any action or omission contrary to or not in furtherance of any adopted city policy,” the code states.

The council unanimously voted against using city funding for Merkel’s defense shortly after.

Councilman Ben Wick said he supported the decision because he doesn’t believe the city should pay for an appeal process when someone’s found to be in violation of city policy, regardless of who is involved or the circumstances. He would like to see the council update their governance manual to reflect that.

Council members Jessica Yaeger, Laura Padden and Haley all noted the council receives numerous trainings on open meeting and public record law.

They stressed that the complaint, investigation and appeal would have been avoided if Merkel had complied with city code by adding his Nextdoor account to the city’s record keeping service. Yaeger filed the complaint that led to the investigation and its findings earlier this summer.

“This gentleman is supposedly committed to transparency in government, and refuses to be transparent about his own actions,” Padden said. “He also preaches fiscal restraint and accountability, but has cost you and me, the taxpayers, hundreds of thousands of dollars that should have been spent on more important items like increasing police activity or paving our local streets.”

Merkel has hired his own attorney to represent him in the appeal, and said he would have voted against the city funding his defense if he had been allowed to participate.

Merkel released a statement following the meeting in which he criticized Haley, Hohman and the “slate of mostly lame duck council members” for past council actions he opposed, like the improvements made to Sprague Avenue this summer that shrunk the available westbound lanes along a half-mile section.

He accused the council of using the public’s “tax money to attack me, because they don’t want what you want: a safe city, low taxes, predictable development and a council that listens to constituents.”

He also accused his fellow council members of “continuing to defund the police,” despite the council taking no such action. In February, the council approved hiring 10 additional officers and a civilian analyst using funding that was redirected from the city’s street maintenance and preservation fund.

Merkel concluded the statement with a call to Valley residents that they can contact him with concerns about the council, the state of the city and what they’d like out of their elected leaders. He listed his phone number, his city email address and his Nextdoor account as the best avenues to contact him.