Screenshot of Spokane Valley appeal hearing video
Spokane Valley City Council member Al Merkel represented himself during an Oct. 24 appeal hearing related to one of the investigations the city has conducted into his behavior this year.
Last week, Spokane Valley released details about how much the city’s multiple investigations into City Council member Al Merkel have cost.
At the Nov. 5 Spokane Valley City Council meeting, an expense report on the agenda stated that two independent investigations found Merkel has displayed a pattern of intimidation and hostile interactions with the city’s workforce, and disregarded the Council’s Governance Manual and Washington state laws despite receiving extensive training on public records rules.
The report outlines an ongoing expense of more than $143,000 related to investigating Merkel’s actions. The costs are expected to increase as legal fees continue to be billed.
Merkel was elected in November 2023 and is still in the first year of his four-year term. As a Council member, he receives a yearly salary of $21,600, or $1,800 a month.
At the meeting, Merkel stated that the expenditure report was just a “hit job” at taxpayers’ expense. He argued the report just shows the cost spent to tarnish his character.
In May, Merkel’s allegedly disrespectful and intimidating behavior toward city staff was investigated. After interviewing 22 employees, the investigation concluded that Merkel’s behavior violated training and traditional workplace decorum. It cost the city more than $96,000 in investigation fees.
Because of the hostile work environment investigation, Merkel’s office was moved to the main floor of City Hall and he has limited access to and interaction with city staff.
“The first investigation found nothing other than a bunch of mischaracterizations and mean words finalized by a conclusion that I didn’t break the law in any way,” Merkel said during the Nov. 5 City Council meeting. “So I hope that the citizens of this community can join together to call for this city administration to stop wasting their money on trying to politically attack me.”
Council member Laura Padden said that Merkel was painting himself as the victim, but argued that the real victims are the taxpayers, Merkel’s neighbors who filed nuisance complaints, and Nextdoor app users who disagree with Merkel. Padden also said city staff endured his disrespectful and intimidating behavior until he was limited in his interaction with them.
Additionally, Padden said that the Council had the right to refuse to pay for a defense attorney in Merkel's requested appeal hearing for the second investigation.
“The Council member was free to hire his own attorney, but he refused,” Padden said. “Perhaps he felt his interpretation was more compelling than that of the state Supreme Court justices and the experienced attorneys looking at the facts.”
Council member Jessica Yaeger gave similar remarks about Merkel’s conduct with city employees and noted that Merkel continues to violate established rules of conduct.
“His behavior manipulating the truth, which you just saw again, disregarding established rules and prioritizing personal gain over public interest undermines the ethical and fiduciary responsibilities that this council is sworn to uphold,” Yaeger said.
APPEAL HEARING
After the second investigation concluded he allegedly violated Washington’s public records law and the city’s social media policy, Merkel appealed and represented himself in an appeal hearing on Oct. 24.
Fellow Council member Yaeger made the complaint to the city that initiated the public records investigation, which was finalized on Sept. 3.
The investigation was conducted by attorney Rebecca Dean, whose report concluded that “some” of the posts Merkel made on his personal Nextdoor social media account “are more likely than not” public records that aren’t currently retained by the city.
Merkel has refused to use the Pagefreezer software provided by the city to catalog his posts on the Nextdoor account. He argues the posts are personal in nature, though he regularly posts about city business.
The city paid Dean to investigate the complaint, which so far has cost more than $30,000. The total price is expected to increase because Merkel appealed.
The Oct. 24 appeal hearing was overseen by Andrew Kottkamp, who is contracted by Spokane Valley to serve as an impartial third-party hearing examiner. Kottkamp has nearly 24 years of experience in the profession working for multiple counties, including Chelan, Douglas, Kittitas, Grant, Klickitat, Columbia, Garfield, and Whitman.
The city also hired James King as an investigator and third-party counsel to represent the city in the appeal.
During the hearing, King questioned Dean to establish that she was paid $375 an hour for 40 hours to produce the report, including legal research and expenses. The city also paid Dean to testify during the appeal hearing. She’s charging $395 per hour for the additional work.
Merkel previously told the Inlander that he took issue with the city hiring a Seattle lawyer for the investigation at the taxpayers’ expense. During the appeal hearing, he thanked Dean for coming to Spokane Valley from Seattle.
As King questioned Dean, Merkel objected many times.
At one point he objected to Dean using her iPad. Merkel claimed she could be fed responses or answers during the questioning.
“Mr. Kottkamp, can I object very quickly? I didn’t realize that the witness was using an iPad up there,” Merkel said. “I mean, it could be used to digitally tell her what to say or things of that nature. I’ve never seen an iPad being used in a witness case before.”
Merkel is not an attorney.
“Well it’s very common to refresh recollections for people to be able to review handwritten or computerized materials,” Kottkamp said. “Mr. King, your response?”
“It’s the 21st-century version of notes,” King replied. “It’s always proper to refer to notes if you need to refresh your memory or to articulate specifics on a question that asked for that detail.”
“So your objection is noted, and I’m going to overrule it,” Kottkamp told Merkel. “You can take your computer up there as well.”
When it was his turn to question Dean, Merkel frequently made statements instead of asking her questions.
“Please don’t do that,” Dean said to Merkel. “If you have a question, ask me a question.”
The hearing examiner reprimanded Dean for “scolding” Merkel, but also reprimanded Merkel for making rambling statements instead of asking direct questions.
After Merkel began rereading Dean’s report to the city, Kottkamp stated that if he was referencing evidence that everyone had, Merkel didn’t need to reiterate it, and should focus on asking questions instead.
“We gotta have a question!” Kottkamp said.
Merkel asked Dean if she had noticed the disclaimers on his Nextdoor posts during her investigation.
“I observed your many types of different disclaimers,” Dean replied.
Merkel argued that his posts are protected by the First Amendment and supported by a Supreme Court ruling (Lindke v. Freed) that found public officials’ posts could be presumed personal if they contain disclaimers.
Both parties have until the end of this week to deliver written closing arguments to Kottkamp, who has until mid-December to issue a ruling.
It’s not clear yet what the final costs will be for the appeal.
Editor's Note: This story was updated on Nov. 13 to reflect an extension of the deadlines for both parties to get their closing arguments to the hearing examiner and for him to make a decision.
