The city announced earlier this month that a third-party investigation found Merkel violated the council’s Governance Manual and potentially state law. The situation ensued following a complaint from fellow Councilmember Jessica Yaeger over his use of the social media platform Nextdoor.

Merkel attests that he uses the platform to engage with his constituency, but on a personal level, not for city business; however, the investigator disputes this, concluding that Merkel violated the Governance Manual’s social media policy and “more likely than not” the Public Records Act. 

“I want to set the record straight,” Merkel wrote in a press release, “I did not ask the city to pay for my attorney’s fees.”

According to Tuesday’s agenda, if the Valley did provide Merkel with city-funded representation, it could’ve cost approximately $5,000 to $10,000. Merkel already faced another investigation, which, according to records obtained by The Center Square, cost the Valley at least $28,000. 

The Center Square asked Communications Manager Jill Smith about the cost of this most recent investigation and the price of the city’s representation throughout the appeal process. Smith did not provide an answer prior to publishing. 

The city and investigator allege that Merkel’s posts likely qualify as public records, but they’re unable to archive them due to him using a personal account. They continually pushed for him to use a councilmember-specific account, which uses an automatic page freezer for archiving. 

Merkel didn’t comply, opting to ask his constituents whether he should appeal the findings, which he said could come at the cost of their tax dollars, or take the reprimand. 

He ultimately appealed the investigator’s findings to the city hearing examiner on Sept. 10 with a date scheduled for the case on Oct. 24. Per state and local regulations, Merkel was not allowed to participate in Tuesday’s discussion or vote. 

“The remaining six Councilmembers voted unanimously that Councilmember Merkel is not entitled to city-funded legal representation because SVMC 2.70.030 prevents the City from doing so for claims that Councilmembers violated city policy,” according to the city’s press release. 

When initially asked to recuse himself, Merkel told Mayor Pam Hayley that he disagreed with her interpretation of the law that prohibited him from participating. She asked him again, noting it’s the interpretation of multiple people, including the state Supreme Court, to which he again disagreed. 

“You disagree with the Supreme Court,” she asked, smiling at Merkel. 

“I mean, I disagree with this interpretation,” Merkel responded. 

City Manager John Hohman chimed in, noting that the city anticipated Merkel’s reluctance to rescue himself, asking the rest of the council to proceed anyway. Hohman told Merkel that regardless, he could not vote or ask questions. 

Hohman reminded Merkel of the state and local law, which City Attorney Kelly Konkright backed up, followed by Hayley asking staff to mute Merkel’s microphone on the dais. 

“Part of my responsibilities as your city manager is to manage risk,” Hohman said. “This has been one of the most challenging years I think we’ve had since our incorporation in 2003, mostly due to Councilmember Merkel’s pattern of behaviors.”

He said this isn’t about anyone trying to silence Merkel; it’s about following the rules. If Merkel wishes to have legal representation, he must provide it at his own expense or someone else’s, he said.