Spokane Valley council declines city-funded legal defense for councilmember in public-records suit

Spokane Valley City Council on Feb. 18 voted to deny city-funded legal representation for Councilmember Al Merkel in a lawsuit the city filed alleging violations of the Public Records Act and the council’s social media policy.

The motion, made by Deputy Mayor Hatenberg and seconded, asked the council to “deny council member Merkel any city funded legal representation in connection with case number 25-2-0071032 pursuant to Spokane Valley Municipal Code 2.70.03A4N5.” The motion passed unanimously.

The city manager and deputy city manager told the council the lawsuit followed an independent investigation and a hearing examiner decision that found violations of the council’s social media policy and that certain records posted on Merkel’s personal accounts were public records. Deputy City Manager Eric Lam summarized the situation: “The hearing examiner upheld the independent investigation and again found that there were violations of the City's adopted social media policy.”

Lam and City Manager John Holman explained the municipal code limits the city’s obligation to pay legal costs when a lawsuit is brought by the city against an official or when an official’s conduct is found to be willful or contrary to adopted policy. Lam told the council the code contains prohibitions that apply to the current action and said, in part, that the lawsuit “was based upon claims that council member Merkel has violated city policy.”

Holman and Lam also said the city’s insurer excludes coverage for Public Records Act violations and for willful actions outside an official’s authority. Holman said the city had worked for months to gain compliance and that the matter would have been resolved sooner if the records had been produced: “This could stop, should have stopped or should have never even started. ... If council member Merkel would just be transparent and provide those records, if you would stop deleting records ... maybe that's what he needs to do is go back and produce all the screenshots of all the thousands of different posts that he's done.”

Members of the public spoke at the meeting. Several residents urged the council not to pay Merkel’s legal costs, arguing that taxpayers should not cover defense for alleged misconduct. Others asked procedural questions about the city’s insurance coverage and potential liabilities.

Councilmember Wieck said the municipal code’s language was clear about when the city is prohibited from paying for legal representation: “It seems very black and white for the code that we're prohibited from using or providing legal defense for any lawsuit brought against an official on or behalf of the city.”

The council’s vote denies city payment of Merkel’s legal fees for the specified case. The action does not prevent Merkel from hiring private counsel or seeking other remedies; council members and staff said the decision followed the city code and insurance limitations.

The lawsuit and the council’s decision were discussed extensively during the meeting and were the subject of multiple public comments and council remarks. The city said it will continue to pursue the court action to compel production of the records the city alleges are public.