Nashville council committee investigating Mayor Barry picks chair, begins search for law firm

A special Metro Council committee investigating Mayor Megan Barry embarked on uncharted territory Thursday, holding its first meeting and deciding how to proceed with a probe into the use of taxpayer funds during the mayor's affair with her former bodyguard.

The seven-member committee voted 4-2 to appoint Councilwoman Burkley Allen to chair the group, tapping the Belmont/Hillsboro council representative over At-large Councilman Bob Mendes, who was also nominated. Mendes abstained from voting.

The panel then directed Vice Mayor David Briley to lead the search for a law firm that will work alongside city auditor Mark Swann to conduct the council's investigation. The Metro Charter gives the vice mayor the authority to employ legal counsel on behalf of the council.

Briley, an attorney at Nashville's Bone McAllester Norton PLLC, has two weeks to recommend at least two law firms for the committee's consideration. He's also been directed to create a rubric outlining priorities for the law firm, including that the diversity of employees at the firm be a criteria.

"Vice mayor, you have homework," Allen said.

Committee leader pledges 'objectivity and dignity' in investigation

In picking Allen to lead the group, the committee chose one of seven council members who voted against the creation of the committee last week. Allen, who represents the council district where Barry resides, is aligned politically with the progressive mayor.

"I pledge to do this very difficult job with objectivity and dignity, and I hope you all will join me in that goal," Allen told her colleagues.

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Committee members — adhering to advice from council attorney Mike Jameson — agreed Thursday that the committee itself won't be conducting the investigation. Instead, they will bring in professionals. The law firm and the auditor are to work together and divide their roles.

"Frankly, we don't need the seven of us on the committee as junior detectives figuring stuff out," Mendes said. "I view us more as managing or supervising."

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Mendes pointed to Briley's two decades practicing law in Nashville, arguing it would "keep this efficient and moving forward" if the vice mayor takes the lead in recommending a lawyer.

Vice mayor on law firm search: 'I will do my best'

Thursday's meeting lasted about 50 minutes. The committee agreed to hold its next meeting March 1 at 4:30 p.m.

Barry, a Democrat, admitted Jan. 31 that she had an affair with her former head of security, Sgt. Rob Forrest. The mayor has said the affair began in the spring of 2016. Forrest earned considerably more overtime pay under Barry than he did under her predecessors and went on 10 city trips with Barry without other mayor's staff present.

The council's investigation is one of three into Barry's conduct during the affair, along with other probes from the Tennessee Bureau of Investigation and the council's Board of Ethical Conduct.

Jameson said there are law firms across the country that specialize in internal city investigations. But the cost for the assistance is unclear. Jameson recommended the council approve legal fees on a monthly basis as the investigation unfolds. Because of cost restraints to fly in attorneys, he advised the law firm be based in Middle Tennessee.

Briley said he will have the Nashville Bar Association and the Napier Looby Bar Association send a notice out Friday of the committee's search for a law firm.

"What I'll be looking for is expertise, no legal or political conflict of interest — it will be hard with that one because lawyers are always so engaged — and, as always, trying to make sure that everybody has a fair shot at the work," Briley said. "I'll do my best."

Committee will decide whether interviews of witnesses are in public

It's unclear whether the investigation will be conducted in public. Ultimately the committee will have the final say.

The committee has subpoena power to compel witnesses to give sworn testimony. But Jameson said one of the "strong advantages" of hiring an outside attorney would be the law firm's ability to conduct interviews of witnesses "in a bit more discreet setting."

He said it would prevent the "circus-like atmosphere" of having witnesses give under-oath testimony before the council, a public body. "There would be, frankly, some squeamish scenarios where you could be placing witnesses under oath and asking them questions under the penalty of perjury," Jameson said.

Instead, under a scenario laid out by Jameson, the interviews would be conducted privately by the law firm, recorded by a court reporter and brought back to the committee.

Barry has hired former U.S. attorney Jerry Martin as her personal lawyer during the investigations.

Nashville's council voted 30-7 on Feb. 6 to create the special committee tasked with investigating whether taxpayer money was misused. The Metro Audit Committee voted Tuesday to direct the city auditor to work with the special committee.

The TBI announced Feb. 1 it is investigating whether there was any misappropriation of public funds or misconduct by a public official. The mayor said Tuesday she has yet to speak with the TBI.

A different Nashville council ethics committee also has been asked to take up a complaint against the mayor, filed Feb. 7. The law department first reviews the complaint to determine whether the allegations, if proved true, would constitute an ethical breach. The department then sends its findings to the committee, which may then vote to accept the department's findings and hold a hearing.

This committee, formally known as the council's Board of Ethical Conduct, may recommend a punishment if ethical wrongdoing is substantiated. Punishments could range from recommending a public censure or Barry's resignation to sending the complaint to the district attorney.

The Tennessee Comptroller of the Treasury routinely investigates allegations of public officials misusing money. A spokesman for the comptroller said the office never confirms the existence of an investigation.

Barry acknowledged the affair Jan. 31 and has apologized, but she has said she did not violate any laws or city policies.

Reach Joey Garrison at 615-259-8236, jgarrison@tennessean.com and on Twitter @joeygarrison.