New Washington law keeps identifying information of whistleblowers private following investigation into Spokane Valley councilman

OLYMPIA – Washington lawmakers amended public disclosure law this year to require identifying information of accusers, complainants and witnesses in workplace discrimination or harassment cases be kept private and their voices altered in audio recordings.

The legislation, introduced by Rep. Rob Chase, R-Spokane Valley, and signed by Gov. Bob Ferguson on Thursday, was written in response to what some Spokane Valley employees describe as targeted retaliation by City Councilman Al Merkel.

Merkel has been bogged in controversy since taking office last year, largely due to a failure to get along with fellow council members and city staffers. Testy arguments have become a mainstay of council meetings as Merkel has repeatedly butted heads with the board and department heads over construction projects, grant applications and the complaints and investigations related to him.

Last May, an independent investigator found Merkel repeatedly disrespected city staff, often engaging in “intimidating behavior.” In one instance, he reportedly asked Mayor Pam Haley to stay after a council meeting to speak, and then stood between her and the door as he got in Haley’s face and yelled at her, according to a city staffer who witnessed the event.

Merkel has maintained the report cleared him of all “legal wrongdoing,” apparently based on the investigator’s determination that his behavior was the same towards city employees of all genders, ages and other protected classes. He argued city staff members did not like his “loud and direct” approach, that claims of harassment were “trumped up,” and that his Latino heritage may contribute to how those in City Hall perceive him.

City and board leaders say Merkel has continued to be disrespectful to staff following the investigation’s findings, even after his office was moved from the dedicated office space for the council to the first floor of City Hall and the completion of a more than $40,000 remodel to the building to implement more separation and safety measures between Merkel and city staff.

Merkel himself testified against the proposal as it worked through the Legislature.

“Let’s be real, this bill exists mainly to keep government actors from being held accountable,” Merkel said.

Merkle added that the city was attempting to silence him “because of the criticisms that I’ve laid at the city of Spokane Valley over tax waste.”

Merkel did not immediately respond to a request for comment on the new law Friday afternoon.

As he testified before the House Government committee in February, Chase said the bill was “prompted by an incident, a specific situation that happened in the city of Spokane Valley.”

“My goal is to protect employees who are investigating workplace harassment,” Chase said.

Speaking before the Senate Government Committee, Chase said the bill “protects whistleblowers.”

“We need to have whistleblowers who go out on a limb to protect the Republic,” Chase said.

As he signed the legislation Thursday, Ferguson said the bill “prevents victims of workplace harassment from being revictimized by an abuser who may figure out their identity through a public records request.”

Ferguson noted that Washington has one of the strongest public records laws in the country, though there must be a balance “to make sure that we’re protecting folks who are facing real challenges.”

“And their information should not be shared,” Ferguson said.

The bill exempts the redaction of names and job titles of elected officials.

While the public records act previously required the names of complainants, accusers, and witnesses to be redacted, several Spokane Valley employees said that disclosing their contact information and job title made them easily identifiable in documents.

“This is happening right now within the city of Spokane Valley,” Spokane Valley City Attorney Kelly Konkright told the House government committee in February.  He said a council member had used the Public Records Act “to target and publicly criticize city employees who honestly reported what they believed and witnessed was harassing behavior. This is discouraging the city’s employees from reporting future misconduct.”

Stressing that she believes in open and transparent government, another  public records employee told members of the committee that the city had received “many public records requests” from Merkel for all records related to an investigation into his conduct.

“The council member, after receiving them, then posted comments and quotes from those interviews on social media, along with heckling the participants in those interviews,” the employee said, adding that Merkel also posted the records on his campaign website with the identity of those interviewed, along with a review of the investigations. “It felt a lot like retaliation to those of us who had participated in interview processes, when it was never a political intent for us to go after this council member.”

The incident, the employee said, has left many city employees saying they will no longer come forward to testify in future investigations.

Another city employee told the committee that the postings resulted in “distrust and resentment” toward Merkel.

Candice Bock, director of government relations for the Association of Washington Cities, told the committee that the intent of the bill is to “make sure that the Public Records Act is not being used as a tool for retaliation against our folks who participate in an investigation.”

“The Public Records Act is to make sure that the public has access to our records,” Brock said. “When we use it as a tool for retaliation, that creates a chilling effect on our employees and on our process.”

The bill passed in the Senate 48 to 1 and passed the House 92 to 5. It takes effect July 26.

Editor’s note: This article has been updated to correctly identify Spokane Valley City Attorney Kelly Konkright