Key O.C. Agencies May Be Unconstitutional, Some Officials Fear : Government: The state attorney general’s office has entered the representation dispute and plans to issue an advisory opinion within two months.

Several little-noticed but powerful Orange County and regional agencies may be operating unconstitutionally because selection of their board members is not based on one-man, one-vote representation, some officials fear.

Under scrutiny are boards that set policies that determine how much money is spent to solve some of the region’s biggest problems, including transportation, pollution and unbridled growth. At issue is whether the boards represent residents of cities and counties on a basis proportionally equal to their populations.

Concerned officials cite a U.S. Supreme Court decision last year that held unconstitutional the membership of the New York City Board of Estimates, which set the city’s budget.

The board was composed of the mayor, comptroller and city council president, each with two votes, and five borough presidents. Under that system, voters in the tiny borough of Stanton Island could have more clout than voters in Brooklyn.

And although no lawsuits have been filed in California on similar grounds, some Orange County officials believe that at least five local agencies may have to be revamped. Included are:

* Orange County Transportation Commission.

* Orange County Transit District.

* Orange County Local Agency Formation Commission, which rules on annexations.

* Orange County Transportation Corridor Agencies, which are planning and building three tollways.

* South Coast Air Quality Management District, a four-county agency, which has been writing stiff anti-smog regulations ranging from mandatory car-pooling to bans on back-yard barbecue lighter fluid.

At the request of Sonoma County, in Northern California, the state attorney general’s office has entered the representation dispute and plans to issue an advisory opinion within two months.

Changes in agency membership could affect how agencies spend money on projects.

“It’s critical right now,” said Brea Councilwoman Clarice A. Blamer, vice chairman of the Orange County Transportation Commission. “It could have a grave impact on the commission and on government all the way through.”

“We would like to see a full-time commission elected directly by the public,” said Bill Ward of Drivers for Highway Safety, a grass-roots organization that opposes OCTC’s plans for a sales-tax election in November and which campaigned against an OCTC-backed sales-tax measure last fall.

“We’ve tried to talk to the commission but it just doesn’t want to listen to the people.”

Sonoma County Counsel James P. Botz is seeking the attorney general’s opinion because various groups are considering a ballot measure to increase the sales tax to pay for highway and transit projects. He was concerned that the local transportation authority, virtually identical to Orange County’s, can split sales tax proceeds in a way that could be politically biased in favor of the cities at the expense of residents in the unincorporated areas, or made without a sufficiently broad, countywide perspective.

“In terms of funding decisions, I think it’s a violation of one person, one vote,” said Botz, referring to the constitutional doctrine of fair and equal representation based on population.

Orange County transportation officials are considering a similar election in November, after last fall’s defeat of Measure M, the proposed half-cent sales-tax increase that would have raised about $3.1 billion over a fixed, 20-year period. Measure M, written by a commission whose membership is not based on proportional representation, lost 52.6% to 47.4%.

The attorney general’s office has asked OCTC for comment, as part of its research on the one-person, one-vote issue.

Ward, of Drivers for Highway Safety, said his group may write a letter to the attorney general’s office in support of one-person, one-vote.

For two years, OCTC member Dana W. Reed has been quietly waging a lonely campaign on behalf of equal representation, hoping to influence the future composition of a proposed, countywide council of governments. Such a council, now under discussion, would have broad powers to coordinate transportation and land-use decisions.

Reed, a Newport Beach attorney and a former Deukmejian Administration cabinet official, said he was outraged when he first learned how the membership of OCTC is determined.

The panel has eight members, including a non-voting, ex-officio representative from Caltrans. The seven voting members include three city council members selected by the county’s League of Cities, three county supervisors (from the 1st, 2nd, and 5th districts) and a member to represent the public at large, selected by the other voting members.

Reed is the public-at-large member.

No one who lives in the unincorporated areas of the 3rd or 4th supervisorial districts, Reed argued, has a chance to vote for or against any one who sits on OCTC, even though taxpayers from those areas help pay for county highway and transit projects.

The same pattern applies to the transit district, Reed said. There are no representatives from South Orange County on OCTD’s board, so a resident unhappy about bus service there can only complain to, but not cast any votes to oust, any politician currently serving on that board.

“Major, major decisions are being made affecting lots of people and those people don’t have any say at all in the making of those decisions,” Reed said. “The city people say they are representing all of the cities. I live in Newport Beach and I just don’t buy that, at least as it relates to me. The city representatives who are there don’t have to face registered voters in my city.”

Meanwhile, Reed added, Tustin and Huntington Beach each have a representative at OCTD, even though the population of Huntington Beach is more than 3 1/2 times as large.

“The real risk is in voter distrust and voter alienation--people feeling alienated from government,” Reed said.

OCTC Counsel Clayton H. Parker has drafted a letter to the attorney general’s office rejecting application of the one-person, one-vote doctrine.

Parker argued that, unlike the New York City Board of Estimate, all OCTC members are appointed by a legislative body elsewhere (except Reed) and thus do not acquire commission membership automatically.

At Reed’s request, Parker last week agreed to withhold his letter until the issue could be discussed at a future OCTC meeting.

In New York, meanwhile, the Board of Estimates is being phased out. Following a charter revision approved by voters last November, the board’s authority to draft the city’s budget has been transferred to an enlarged City Council.

Frank New, director of city legislative affairs for New York Mayor David N. Dinkins, said the city based its Supreme Court arguments on a contention that the Board of Estimates is unique.

“I don’t think there is a system elsewhere like ours,” New said, “but the Supreme Court said even if that’s true, you have to change.” As a result, New added, “There are lots of boards and commissions all over the place that could be challenged.”