Spokane Valley City Council to consider settlement with sitting member over public records lawsuit
The Spokane Valley City Council will hear a settlement offer from Councilman Al Merkel Tuesday that would end the city's lawsuit against him — a monthslong legal dispute centered around the councilman's use of the social media platform NextDoor.
The city opened an independent investigation into Merkel's NextDoor use last June following a complaint from Councilwoman Jessica Yaeger that he was using the platform as a form of city-related communication without keeping proper records of his activity. Rebecca Dean, a Seattle-based attorney who conducted the investigation, determined Merkel's use likely violated the state's Public Records Act and city code governing council members.
Merkel has maintained that he does not believe his activity, whether posts, surveys or messages, constitute public records, and unsuccessfully appealed the investigation findings to the city's hearing examiner last fall. Citing a lack of compliance from Merkel following the investigation, and the hearing examiner's decision to uphold it, the Spokane Valley City Council voted to sue Merkel in February to force him to comply with open records rules.
Merkel's fellow members on the city council voted unanimously to strip him of committee assignments, and to publicly censure Merkel — a formal condemnation for his actions — in a special meeting Dec. 19 following the appeal. The punishments are among the most severe available to the council when disciplining a fellow board member, and will remain in effect for the remaining three years of Merkel's term.
The settlement offer, passed along by Merkel's attorney Patrick Kirby, comes just before the lawsuit was to appear before Spokane County Superior Court Judge Rachelle Anderson on July 18.
If approved by the city council, the settlement would lead to the dismissal of the lawsuit with prejudice, meaning the city could not refile the same claim down the road for events before the settlement took effect. The city would also cover all of Merkel's attorney fees past, present and future, "as they pertain to this dispute," according to meeting materials including in the agenda for Tuesday.
Merkel is also requesting the city come to agreement with him on appointing an "independent master" to review his social media and determine what activity constitutes a public record, and to have the city cover the costs of the role. Merkel would only be legally obligated to produce social media posts the "master" determined to be public records, the settlement terms state.
The city would pay for an attorney to serve as the "independent master." The city already has a staff that is trained in public record's law to fill records requests, and the city covered the costs of two independent experts already for the investigation and hearing examiner proceedings.
The settlement would preempt a court from weighing in on whether, or to what extent, Merkel's activity on NextDoor is a public record. It would also preempt a court from directing him to provide those posts and to comply with state law and city policies moving forward, which is highlighted as a potential concern in the meeting materials.
"Both determined Councilmember Merkel violated the Governance Manual social media policy and did not comply with his good faith obligations under Washington case law," the agenda item states. "Councilmember Merkel did not adhere to those determinations, and thus it would remain to be seen whether he would adhere to a third independent attorney's determinations in this regard when not in his favor."
City Attorney Kelly Konkright will brief the council on the offer from Merkel at its regular 6 p.m. Tuesday meeting.
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