Mayor Barry: DA Glenn Funk should recuse himself from investigation into affair

Embattled Mayor Megan Barry took aim at District Attorney Glenn Funk on Friday, calling on him to recuse himself from the criminal investigation into her affair with her bodyguard and criticizing his handling of the case.

Funk answered back that he has no intention of handing the case off to another prosecutor.

Barry's office, in a news release, argued that Funk has a conflict because the mayor's office oversees the District Attorney's Office budget, citing a legal opinion written by Lucian Pera, a Memphis lawyer who serves as president of the Tennessee Bar Association.

Barry's attorney Jerry Martin said Funk raised the issue of a possible conflict himself during a meeting last week. Budget season kicks off in the coming weeks when the DA's office will make his annual funding request.

“District Attorney General Glenn Funk is required by the Tennessee lawyer ethics rules and case law to recuse or be disqualified from his supervision and participation in the criminal investigation of Mayor Megan Barry,” Pera said. "The opinion, delivered to Funk on Thursday, outlines the reasons why he and his office should be recused from any investigation into Mayor Megan Barry."

But Funk issued a statement in response making clear he has no intentions of stepping aside.

“When the TBI investigation is complete, I will fulfill and perform the requirements of my office," he wrote. "Until that occurs, this office will not have public comment so as to not interfere with the TBI investigation.”

The back-and-forth came as Barry maintained a public schedule, making an appearance at an event Friday morning announcing a makeover for Old Hickory Towers, an affordable senior housing development. Old Hickory Towers is owned by the development firm Freeman-Webb, where Barry's former mayoral rival Bill Freeman is a co-founder.

Wearing a business-as-usual demeanor, Barry spoke at the event and answered questions from the media for about three minutes.

More: TBI: Nude cellphone photos, deleted chats may show evidence of crime in Mayor Megan Barry affair

Councilman John Cooper, one of Barry's chief critics on the council, meanwhile blasted the mayor for calling for Funk's recusal. Cooper said district attorneys are elected, and not appointed, so that they maintain independence.

In Friday's news release sent by Barry's spokesman, Pera argued that Funk's interest in obtaining city funding creates a conflict for supervising and participating in the investigation.

Martin criticized the Tennessee Bureau of Investigation and Funk on Thursday for not sealing an affidavit seeking the pass code to Barry's cellphone.

► More: Mayor's office: Megan Barry not resigning despite revelations in TBI investigation

Funk said he instructed the TBI to follow its normal procedures for seeking to obtain a search warrant. The affidavit, filed with the Criminal Court Clerk's Office on Thursday, revealed nude photos of a woman investigators believe to be Barry. The photos were taken while Sgt. Rob Forrest, the head of Barry's police security detail and with whom she was having an affair, was on duty, according to the affidavit.

TBI spokesman Josh DeVine said the agency is treating the case like any other. He added that TBI warrants are seldom sealed and said it is up to prosecutors and judges to decide whether they are sealed.

“General Funk’s official responsibility and interest in obtaining Metro funding for his office creates a conflict of interest for him in supervising or participating in an investigation of Mayor Barry," Pera said in his opinion. “This conclusion is based on my view that there is a significant risk that General Funk’s independent professional judgment or impartiality will be materially limited by his obligations and interests concerning obtaining funding from Metro for his office’s operations.”

Cooper said that Pera works for the Memphis office of the law firm Adams and Reese, which the mayor's office hired to be the city's lobbyist on state issues.

"If anyone has a conflict, it's their own legal expert," Cooper said. "But the bigger issue is this does not seem consistent with the pledge to cooperate with the investigation. It now seems like an effort at interference.

"Fundamentally, no part of Metro government can be above the law. We elect DAs to be separate and have independence to be able to investigate these kinds of things. And the big issue is Adams and Reese is paid by the city to lobby."

Further, Cooper argued the budget issue does not create a conflict for the DA, because the mayor proposes the budget and controls the city's purse strings. The city council has final say on all funding requests.

► More: Mayor Megan Barry shares cellphone passcode to TBI, attorney says

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In a news release from Barry spokesman Sean Braisted, the mayor's office says there's an established precedent for a district attorney to recuse himself. In 2008, District Attorney Randy Nichols recused himself from an investigation into Knox County Mayor Mike Ragsdale.

That investigation resulted in no grounds for charges against Ragsdale.

Later Friday morning, Joycelyn Stevenson, executive director of the Tennessee Bar Association, issued a statement making clear that Pera's legal opinion was made in his capacity as a private attorney and not on behalf of the association, which is not taking a position on the case.

Reach Nate Rau at nrau@tennessean.com or 615-259-8094 and on Twitter @tnnaterau.