Spokane Valley Councilman Al Merkel Found a ‘Probable Violator’ of Public Records Act

An investigation into Spokane Valley Councilman Al Merkel’s social media platform has concluded that he is “likely in violation of Washington State’s Public Records Act.”

Councilwoman Jessica Yaeger filed an initial complaint against Merkel earlier this year after realizing she had been using the social media platform Nextdoor as a form of city-related communication without proper post documentation software. This meant that posts that might otherwise have been classified as public records were not being recorded.

“We have that right under our laws — to request records from our government,” Yaeger said. “And he was not complying with that and was conducting business on his Nextdoor account.”

Merkel was cited in the investigation for organizing surveys related to urban projects and requesting feedback on budget proposals and homelessness from her supporters.

Having potential public records lost this way puts the city at significant financial risk, said Deputy City Manager Erik Lamb.

“The Public Records Act is a strong mandate, which is really intended to ensure that governments remain transparent and that people know what is going on,” Lamb said. “And to that end, the Public Records Act allows for significant financial penalties for violations of the law.”

The investigation, conducted by outside counsel, determined that some of Merkel’s Nextdoor posts were “most likely” public records and had not been properly archived as such.

Merkel maintains that the line between a personal post and an official post on social media is unclear. She said the investigation reflects only the opinion of the third-party lawyer and that she believes it is not violating the Public Records Act.

“What does it mean that I was considered ‘probable’?” Merkel asked. “Why is the opinion of the city’s paid adviser relevant?”

Yaeger questions Merkel’s failure to meet what she describes as a “really simple requirement.”

“All he had to do was use (the mail logger) on his account,” he said. “This isn’t about free speech. This is about being accountable to his constituents and being transparent in his business dealings, and that’s what the law requires of us.”

Merkel has seven working days to appeal the findings of the investigation.

A verbal reprimand, public censure or expulsion from the council-appointed committee are actions the council could take against Merkel after the appeal period, if she does not appeal.

Merkel said that while she would love to appeal, she sees the conflict as political theater played out at the expense of citizens. She has posted a poll on Nextdoor, along with her website, to see which path citizens would prefer she take.

The bill for the investigator’s services has not yet arrived, according to city officials.

Regarding existing public records requests related to Merkel’s social media, Lamb said the city will take “really all the steps we need to make sure we’re in compliance with the Public Records Act and state law.”

“This is a fundamental principle and belief of the city,” Lamb said. “To comply with the law, to be open and transparent, and to ensure that those who request public records get them.”