The neutral arbitrator presiding over binding arbitration between the Lingle administration and the Hawai'i Government Employees Association has closed the hearings to the public and the news media.

Philip Tamoush, a labor negotiator from California, said binding arbitration is a continuation of contract negotiations between the state and the union, which are private.

Tamoush also said the news media may not have the necessary background to follow the proceedings. He told negotiators privately that the media may only cover portions of the hearings if allowed inside.

"It's hard for you guys to really understand what we're trying to do, and to report on it without knowing the past year and everything is just difficult," Tamoush told reporters after yesterday's hearing.

The state's budget deficit has dominated news media coverage in Hawai'i for more than a year, and contract negotiations between the state and the union have received extensive media attention over the summer, even though the talks are supposed to be private.

Unless contract talks are revived, binding arbitration would resolve the dispute over whether labor costs should be reduced to close an estimated $884 million budget deficit through June 2011. The state is going into binding arbitration with the United Public Workers next week. The state is also in contract talks with the Hawai'i State Teachers Association and the University of Hawai'i Professional Assembly.

DECEMBER DECISION

The hearings with the state and the HGEA started yesterday afternoon and continue this morning before a three-member panel. A final decision by the panel is scheduled for late December.

The state's open meetings law does not not apply to the Judiciary or quasi-judicial boards such as the Hawai'i Labor Relations Board, which oversees the state's labor law. However, certain labor board functions, such as proceedings about unfair labor practices, are open to the public.

The section of state labor law governing the arbitration panel and arbitration hearings does not explicitly say whether hearings are open or closed to the public.

Tamoush allowed photographers and television cameramen to take photographs and shoot video before ordering the media to leave. He said that he and one other member of the panel wanted to close the hearing, suggesting the hearing could have legally remained open if a majority on the panel agreed.

Jeff Portnoy, an attorney who has represented the news media, including The Advertiser, dismissed Tamoush's rationale that reporters may not understand the subject matter or stay through the entire hearings.

"That's garbage," he said. "The media has a right to cover what it believes it wants to cover and no judge or arbitrator has the right to determine that unless there's a commitment that you're there 24/7, that you can't cover it. So that reason is totally bogus."

VESTED INTEREST

Portnoy said the news media — and by extension the public — has a clear interest in the hearings because they could help determine how the state handles the deficit. "To close that proceeding to the people who are going to pay the bill is absurd," he said.

Both the Lingle administration and the HGEA told the news media before the hearing that they would not object to the media attending, as long as it was allowed by the neutral arbitrator. Reporters from The Advertiser, the Star-Bulletin, the Associated Press and network-affiliated television stations arrived to cover the hearing.

'WOULD BE HELPFUL'

Linda Smith, Gov. Linda Lingle's senior policy adviser, said she believes it was the neutral arbitrator and the HGEA representative who wanted to close the hearing to the media. The panel includes a representative from the state, the union and the arbitrator. The state representative is Stan Shiraki. The union representative is Larry Ishimi.

"We certainly feel because members of the collective bargaining association and negotiating team and management is permitted in, that it would be helpful for the public to understand what's going on because we're really talking about taxpayer dollars and how the state is going to make up the budget gap," Smith said.

"So the more that the public's aware of what's going on, we think the better that the community will understand the sacrifices that are going to have to be made."

Randy Perreira, the HGEA's executive director, said the union did not direct Ishimi to close the hearing and could not confirm whether Ishimi supported the move.

Perreira said, however, that he personally argued that if the media were allowed to attend, so should rank-and-file union members.

"I think the public certainly has an interest to know given the level of coverage, but I think there are concerns," Perreira said. "And I'll repeat what Mr. Tamoush said. His concern in suggesting to exclude was premised on his belief that the media will come in for periods of time and catch snapshots of what is discussed and report on it, that may not reflect what would then occur over the course of an entire day, over the course of the entire proceeding."

BOTH SIDES HEARD

The Lingle administration has presented a 14 percent pay cut to the arbitration panel while the union has countered with no pay increases over the two-year contract.

The arbitration panel will hear presentations and witness testimony from both sides and accept written briefs. The arbitrator is also supposed to guide the two sides toward a voluntary resolution, if possible, before the deadline for a final decision.

Under state labor law, the panel is supposed to give weight to several factors, including the economy, the cost of living, the public interest, the existing wage and benefit levels of state workers, and whether the state has the financial ability to meet labor costs. The law says the state's ability to pay should not depend on raising taxes, fees or other sources of new revenue.