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No criminal prosecution will result from political fund-raising activity within the Erie County Sheriff's Department during this year's contest for sheriff, District Attorney Frank J. Clark said Tuesday.

The decision not to pursue a case initiated in October stems from the vagueness of the law prohibiting political fund raising by police officers, Clark said, especially regarding whether sheriff's personnel are technically considered police officers.

"We have a body of law on one hand that says they (sheriff's personnel) are not to be included under the statute and several informal decisions by the Board of Elections that says they were," Clark said. "There are no clear-cut decisions to lead either way."

During the heat of last fall's race between Republican Patrick Gallivan and Democrat Rocco J. Diina, Clark said that he would probe reports of fund raising for Diina by command officers within the Sheriff's Department. But he said conflicting opinions issued by the state Board of Elections and attorney general's office limit his options, especially without any binding court decisions to guide him.

"In light of the uncertainty of the law, I cannot say they were violating the statute," Clark said. "I can't base a criminal prosecution on that since no one is sure whether sheriff's personnel are a covered group or not."

"And it's not because I said they were not covered (by the police officer statute)," he added. "I am not saying that."

The controversy mainly centered around Undersheriff Gerald H. Mack, who ran a Diina fund-raiser Sept. 4. Board of Elections officials said at the time that their latest ruling -- issued in 1983 -- classified all sheriff's personnel outside the City of New York as police officers and therefore any political fund raising they conducted would be illegal.

But Clark said earlier board rulings contradicted the 1983 opinion, making it difficult for him to pursue a criminal case. And he said the vagueness of the law can only be rectified through a definitive court decision or new legislation.

"It really needs something to clarify it," he said.

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