An attorney for Megan Barry has asked District Attorney Glenn Funk to recuse himself from further involvement in the criminal investigation of the Nashville mayor's affair with her police bodyguard, NewsChannel 5 has learned.
That request came in a letter hand-delivered to Funk on Thursday. Later that night, Barry questioned Funk's role in the case, including what she called a politically motivated decision to publicly release a damning TBI affidavit that implied investigators may have nude photos of the mayor.
Barry's attorney, Jerry Martin, wrote in the letter that Funk himself had raised the possibility of a conflict of interest back in early February.
"I would respectfully ask you to revisit the issue of whether you and your office may have a conflict of interest," Martin wrote in the letter obtained by NewsChannel 5 Investigates.
"Understand that I raise this issue not only to ensure that my client gets a fair process but also to ensure that the public has confidence in the ultimate outcome."
Martin included a legal opinion from noted ethics expert, Lucian T. Pera, a Memphis lawyer who is the current president of the Tennessee Bar Association.
Pera's opinion notes that Funk must submit his budget requests each year to the mayor, who must then decide whether to include those requests in the budget that she submits to the Metro Council.
"In my opinion," Pera writes, "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 possible criminal misconduct by Mayor Barry.
"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."
Pera emphasized that he was not suggesting that Funk "will actually do anything less than ethical or honorable in conducting the investigation of Mayor Barry."
But the ethics rules require recusal when "there is a significant risk of conflict," the ethics expert continued.
"In my opinion, that analysis leads to the conclusion that General Funk does have a conflict of interest and that, as a result, the ethics rules require that he recuse himself from any role in this investigation," Pera concludes.
Martin also included a 2008 news article where the Knox County DA had recused himself from an investigation of the county mayor for similar reasons.
Funk's office responded with the following statement from the DA that sidestepped the ethical questions.
"When the TBI investigation is complete, I will fulfill and perform the requirements of my office," Funk said.
"Until that occurs, this office will not have public comment so as to not interfere with the TBI investigation."
Ironically, Funk himself faced a TBI investigation back in 2015 a fter a NewsChannel 5 investigation raised questions about a deal that he arranged with a state official to give himself a more lucrative state pension.
That investigation was overseen by Tennessee Attorney General Herb Slatery, who later concluded that Funk had "received pension, salary, and health insurance benefits for virtually no work."
Still, Funk agreed to switch to a less lucrative pension and reimburse the state, and Slatery decided not to prosecute.