Arrested Councilman Could Still be Sworn In

Despite being arrested on charges of , Councilman-elect Sean McNear could still be sworn in and serve on the if he so chooses, according to Borough Attorney Robert Oostdyk.

"Generally speaking, an arrest does not disqualify you from serving on either the council or planning board," Oostdyk said Tuesday, referencing state statute.

Oostdyk said even if convicted, councilmembers are not required to forfeit their seat unless convicted of a select group of specific crimes. Oostdyk did not say what those crimes are, but in the case of McNear, he said it is too early to speculate if that will happen since he has not been convicted, nor has he indicated to the borough whether or not he plans to forfeit his seat since the arrest.

"We haven't heard that that's his choice so we'd be thinking a little bit ahead of ourselves to think that's what would happen," he said.

McNear, 43, was arrested Wednesday on charges of one count of second-degree endangering the welfare of a child and one count of second-degree possession of a firearm for an unlawful purpose afteralleges that over the past two years, he choked, punched and pointed a loaded BB gun in the face of his biological son.

McNear has not returned calls for comment.

Two witnesses, who were not named, were interviewed for the affidavit, one alleging the victim was being abused on Nov. 18 and the other stating that she witnessed McNear allegedly holding the BB gun in his son's bedroom and the victim running out of the room screaming approximately two years ago.

McNear, who also lives in Butler with his wife and 11-year-old daughter in addition to his son, posted $80,000 bail and is scheduled to appear in court on Dec. 14.

Oostdyk said the council does not have the power to disqualify McNear from serving on the council after he was elected this month i McNear, who is also chairman of the Butler Republican Club, could, however, could choose to forfeit the seat himself.

"That's not an uncommon choice people make. That really does depend on the individual," Oostdyk said.

If McNear decides to forfeit the seat, Oostdyk said the council would have to hold a special election. This could happen at any time, he said, whether McNear forfeits the seat before being sworn in or after he is sworn into office in January.

"He may decide it's too much of a distraction dealing with this, if he doesn't want to deal with this in the public eye," he said.

McNear, a 13-year resident of the borough, also serves as an alternate on the borough's planning board. Since this is an appointed position, McNear would have to forfeit the planning board position regardless if he does decide to serve on the council unless the council decides to appoint him as the voting councilmember on the board, Oostdyk said. However, if he decided not to assume his seat on the council, McNear would have to decide whether to forfeit his citizen seat on the planning board.

Butler Planning Board Chairman Jim Nargiso said Tuesday he had not yet heard about McNear's arrest and could not comment on how it would affect the board.

"I don't even know what it's all about so I can't give you any input right now," he said.

While state staute does not prevent McNear from serving, Oostdyk said since the arrest is being handled through the Morris County Prosecutor's Office, Morris County Prosecutor Robert Bianchi does have the authority to decide whether McNear is able to serve.

"It's not uncommon for the prosecutor's office to tie into that his ability to serve in public office," Oostdyk said.

However, since the allegations do not deal with a matter relating to public office, Oostdyk said it is unlikely that would happen in McNear's case.

Mayor Robert Alviene said he and the council are discussing the legality of how the arrest affects McNear serving on the council with Oostdyk and that he still cannot comment on the matter.

"The individual has rights too, obviously...We'll have to just wait and see how this plays out," he said. "I'm kind of shocked that this thing transpired but we'll just have to wait and see what happens."

Woop, the lone Democrat on the council whose term will expire in January, said she also could not comment on the situation or how it may affect the council.

"I really don't have anything to say," she said. "All we're looking at is an affidavit. I know to step back and not interfere with someone's personal life."

Other councilmembers could not be reached.