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Jan-04-05 01:54pm From- 7-225 P 02/03 F-055 January 4, 2005 Page 2 Under Section 3-1 S of the Charter, the County Council shall adopt by ordinance a general plan. The Council cons[ adop[ ordinances pursuant to Section 3-10 of the Charter, which scares that ordinances shall be passed after two readings on two sepazate days. The Charter further requires an affirmative vote of a majority of the entire membership as necessazy for final action, colder Section 3-7 of the Charter. Pursuant to Section 3-15 and 6-Q.3 of the Charter, the Planning Commission must review the General Plan, its amendments and other plans and modifications thereof, and conduct public hearings in every case pre or to action on any matter upon which the Planning Commission is required by ]aw or the Charter to act. Draft 1 was released for review and comment on January 16, 2002, Draft 2 on June 4, 2004 and Draft 3 on November 10, 2004, less than thirty days before six of the nine councilmembers came on board. A majority of the membership of the County Counci111ave not had an opportunity to hold and to heaz public testimony on the amendments as the public hearings on the revisions to the General Plan were heard slatting in early 2002. This presents a possible legal issue, as the new members of the County Council, pursuant to the Charter cannot vote on matters before them unless they review the General Plan, its amendments, other plans and modifications, and public hearings are held, For this reason, we urge the County Council not to Wish to judgment, Additionally, arguing by analogy, the lack of opportunity afforded to the public to have their testimony personally heard by all County Council members, or in lieu thereof, to have all County Council members consider the whole record, including all transcripts of the heazings on revisions to the General Plan before a final decision on the General Plan has been made creates a situation where Council members are being asked to vote on a bill without considering all of the facts presented. Although the Charter does not itself set forth such a requirement, arguing by analogy, under Section 91-11 of the Hawaii Revised Statutes, when officials of an agency who are to render the final decision in a contested case leave not heard and examined all of the evidence, and the decision is adverse to a party to the proceeding other than the agency itself, a decision cannot be made until: 1) a proposal for the decision containing a statement of reasons and including determination of each issue of fact or law necessary to the proposed decision has been served upon the parties; Z) an opportunity has been afforded to the each party adversely affected to file exceptions and present argument to the officials who are to render the decision; and 3) said officials personally consider the whole record or such portions thereof as maybe cited by the parties. Trr this way, all parties have an opportunity to present all material evidence relative to the subject controversy determining the rights, duties or privileges of the parties involved in the proceedings and to have all material evidence personally considered by all officials rendering final decisions in their cases. Here we have a situation where six of the nine councihnembers have not personally heard all public testimony, and in lieu thereof, have probably not been afforded an opportunity to personally review all public testimony on record, including all transcripts of the heazings on amendments to the General Plan. We understand that the Hawaii County Council held a public hearing to hear testimony on Bill No. 163, Draft 1, 2 and 3 relating to the General Plan on January 3, 2005 and will hold another hearing on revisions to the General Plan on January 4, 2005. However, the Planning Committee began its review of the General Plan at a regulaz meeting in Hilo on February 20, 2002, followed by two workshops, a site visit, eight public