A proposed settlement between Maui County and Neldon Mamuad, creator of the popular MAUIWatch Facebook page, has yet to be agreed on, forcing the county to file a memorandum of opposition against Mamuad's federal lawsuit.
"We made several changes and were willing to settle for a fraction of our legal fees and cost but as of right now we do not have an agreement," said Dan Gluck, senior staff attorney with the American Civil Liberties Union of Hawaii, in a phone interview Tuesday. "I thought we were going to have an agreement toward the end of last week, but I have not gotten a substantive response from the county and the county has filed additional legal documents as of yesterday afternoon."
Mamuad, a part-time executive assistant to Council Member Don Guzman and a volunteer Liquor Control Commission member, filed the lawsuit last month, claiming that county officials pressured him to stop work on the Facebook page, which violated his First Amendment right to free speech.
Members of the County Council's Policy and Intergovernmental Affairs Committee discussed the lawsuit behind closed doors in an executive session last week. Committee members voted to recommend the full council adopt a resolution authorizing the county Department of the Corporation Counsel to settle the case.
County attorney Richard Rand said he "would have preferred to have ironed out the settlement this week so we didn't have to do the filings."
"We remain hopeful that we can work through it," Rand said Tuesday.
Maui County spokesman Rod Antone referred all questions to Rand, who could not comment on the details of the settlement.
Mamuad could not be reached by phone on Tuesday, but he posted on the Facebook page that "we bent over backwards to settle this case" and that "the gloves are now off."
"We finished mediation. We completed everything," he said late Monday night on the social media page. "The version of the settlement agreement that the PIA Committee approved last week? We told the county's lawyers before the meeting that the county's version didn't do enough to protect my First Amendment rights, thus wasting everyone's time.
"The county continues to refuse to take steps to protect the First Amendment rights of county officials and employees - our main concern," he said.
The MAUIWatch Facebook page, now a crowd-sourcing site for traffic and other breaking news, began last summer as TAGUMAWatch, a page dedicated to observations of Maui police officer Keith Taguma. The longtime officer has gained notoriety for being "prolific" in writing traffic citations in Central Maui.
According to the county's filing, Mamuad conceded that "most of the time, we were just poking fun at (Taguma) for being so serious about his job for ticketing people for what seemed like petty things."
Taguma filed a complaint under the county's "Violence in the Workplace Action Plan" policy. County officials found that the complaint was substantiated, and Mamuad was required to attend an employee assistance program - which Mamuad partially cited as reason for his preliminary injunction.
However, before action was taken, the county rescinded the letter, and "the investigation is deemed closed," the county's memorandum in opposition says.
"The letter, which (Mamuad) believes led to the filing of the complaint and the present motion, has now been retracted," the county filing says. "This makes the plaintiff's request for a preliminary injunction moot."
In Mamuad's lawsuit, he said he only agreed to change the website's name in August after he was pressured to do so by Corporation Counsel Patrick Wong.
The lawsuit reported that Taguma complained about online postings of his sightings and alleged that Mamuad was harassing him by using his name and photo without his permission and by encouraging others to submit photos of him and comments about him.
The lawsuit sought a federal court order prohibiting Maui County from interfering with Mamuad's right to speak freely. The complaint also asked for a court order declaring the county's actions unconstitutional and ordering the deletion of any disciplinary action on Mamuad's employment records.
The county's memorandum says there is no pending action or investigation against Mamuad relating to his Facebook page, and that Taguma's letter has been removed from Mamuad's personnel file.
The county added that the website's change in name was done voluntarily by Mamuad and that his "self-regulating" posts on his Facebook page are "his decision, one not imposed by the county."
"The county acknowledges that in his role as a private citizen (Mamuad) enjoys certain First Amendment rights and that under well-established precedent one of the threshold issues will be whether (he) is speaking in his capacity as a county employee or as a private citizen," the county's memorandum says. "It appears (Mamuad) seeks a broad order giving him unlimited rights in his role as a county employee."
Gluck said Mamuad and fellow attorney Marcus Landsberg are looking to settle the case "as quickly and efficiently as possible."
"Neldon is certainly frustrated over the lack of progress that has been made in this case and is concerned that his First Amendment rights are protected," Gluck said.
Mamuad's lawyers have until Monday to respond to the county's memorandum. A court hearing has been set for May 12 in Honolulu before U.S. District Judge John Michael Seabright.
* Chris Sugidono can be reached at firstname.lastname@example.org.