REPORT OF THE TENNESSEE ATTORNEY GENERAL'S OFFICE
IN RE: INVESTIGATION OF DISTRICT ATTORNEY GENERAL GLENN R. FUNK
Glenn R. Funk assumed elected office as District Attorney General for the 20th Judicial
District on September 1,2014. By letter dated February 18, 2015, District Attorney General Gany
Brown, President of the Tennessee District Attorneys General Conference (the "Conference"),
reported to the Comptroller of the Treasury that the Conference had hired Mr. Funk as a part-time
assistant employee in June 2014, and that the circumstances of the hiring and Mr. Funk's
enrollment in the state retirement system "could be viewed as an abuse of public money as defined
in T.C.A. 8-19-501." The Senate Judiciary Committee conducted hearings in March 2015, which
addressed alleged improprieties related to Mr. Funk's employment with the Conference from June
23,2014, through August 31,2014.

Following the Senate hearings, on April 1,2015, the Tennessee Attorney General's Office
initiated an investigation of the allegations related to Mr. Funk. The Tennessee Attorney General
is authorized to investigate and, if warranted, prosecute crimes committed by district attorneys
general pursuant to Tenn. Code Ann. $ 8-6-112. Based on this investigation, the Attorney General
has determined that the circumstances surrounding Mr. Funk's employment by the Conference do
not warrant criminal prosecution by this Office. This Report details the investigation, findings, and
conclusions leading to that determination.

I.

SCOPE OF THE INVESTIGATION

Pursuant to his authority under Tenn. Code Ann. $ 8-6-112(e), the Attorney General asked
the Tennessee Bureau of Investigation ("TBI") to investigate "all of the facts of General Funk's
hiring, his service, and his applications for state pension and health insurance benefits." TBI

two agents to the case who interviewed

numerous witnesses, including former
("V/ally") Kirby and Glenn Funk. In addition, the agents
reviewed numerous documents related to Mr. Funk's Conference position, the work he performed
in connection with that employment, and the benefits he received. As prompted by the report of
the Conference to the Comptroller and the Senate Judiciary Committee hearings, TBI's
assigned

Conference Executive Director James V/.

investigation and the Attorney General's review focused on whether suffrcient evidence exists to
institute criminal proceedings against Mr. Funk in connection with Mr. Funk's employment by the
Conference from June 23,2014, through August 3I,2014. This Offrce had no reason to address
any other issues and, accordingly, did not request any investigation beyond the scope described
here. The conclusions presented in this Report are similarly limited to the circumstances
surrounding Mr.Funk's employment by the Conference from June 23,2014, through August 31,
2014.

II.

SUMMARY OF FINDINGS

Mr. Funk's employment arrangement with the Conference from June 23,2014, through
August 3I,2014,was conceived for the sole purpose of assuring his eligibility for, and membership
in, the defined benefit plan of the Tennessee Consolidated Retirement System. The facts
developed in the investigation do not support the publicly-stated reason for hiring Mr. Funk offered

by former Conference Executive Director Kirby, namely, to reduce the caseload of another
Conference staff attorney. Mr. Kirby's assignment of a single case to Mr. Funk and the absence

 of evidence that Mr. Funk performed any meaningful work on the case support the conclusion that
Mr. Funk's employment was designed to give him a state benefit, to which he would not otherwise
have been entitled, when he assumed elected office on September 1,2014. Mr. Kirby exceeded
his statutory authority in hiring Mr. Funk as a part-time Conference employee, whose duties
involved the prosecution of criminal cases, because he knew that Mr. Funk intended to continue
representing defendants in criminal cases. By continuing his criminal defense practice while
employed by the Conference, Mr. Funk violated statutory practice prohibitions imposed on parttime Conference employees, and he received pension, salary, and health insurance benefits for
virtually no work.

III.

FINDINGS AND CONCLUSIONS

The evidence assembled as a result of this investigation leads this Offrce to make the
following findings:

1. Acting through its Executive Director, the Tennessee District Attorneys

General
Conference employed Mr. Funk as apart-úme employee for one purpose: to assure Mr.
Funk's eligibility for, and membership in, the defined benefit plan of the Tennessee
Consolidated Retirement System ("DB Legacy Plan"). Mr. Funk would not have been
eligible for membership in the DB Legacy Plan when he assumed office as District
Attorney General for the 20th Judicial District on September l, 2014, because the DB
Legacy Plan was closed to new state employees on July 1, 2014.

2.

Executive Director Kirby did not obtain the approval of Conference offrcers when he hired
Mr. Funk as a part-time staff attorney as required by Tenn. Code Ann. $ 8-7-31 1(a).

3.

Mr. Funk was assigned only one case as a part-time Conference employee, and provided
virtually no services to the State as a part-time Conference employee. In the one case in
which Mr. Funk was designated to act as district attorney general pro tempore, no court
order was entered appointing him to prosecute the case. Mr. Funk had only limited
communication with the referring agency; he interviewed no witnesses; he did not present
the case to the Rutherford County grand jury; and the case was eventually reassigned to
the District Attorney General for the 21st Judicial District, which includes Williamson
County.

4.

During his part-time employment with the Conference, Mr. Funk represented criminal
defendants in multiple counties in Tennessee, including Davidson and Rutherford
Counties. Tennessee Code Annotated $ 8-7-311(cX2XB) provides that a part-time
employee of the Conference "shall not engage in the defense of criminal cases if such
employee's duties will, at the time of employment, involve or in the future may involve . .
. [t]he prosecution of criminal cases either as a part-time assistant district attorney general
or a district attorney general pro tempore." Mr. Funk's representation of criminal
defendants during his Conference employment violated State law related to the part-time
employment of attorneys by the Conference.

5.

Executive Director Kirby exceeded his authority by hiring Mr. Funk for a position that
would involve the prosecution of criminal cases as district attorney general pro tempore,
2

 because he knew that Mr. Funk intended to continue representing defendants in criminal
cases in violation of Tenn. Code Ann. $ 8-7-311(cX2XB). Mr. Funk knew when he
accepted a position with the Conference that his duties would involve the prosecution of
criminal cases as district attorney general pro tempore.

6.

Mr. Funk stated that he was unaware of the statutory prohibition against the defense of
criminal cases and that Director Kirby and the Conference knew about and approved his
continued criminal defense practice at the time of his employment. He also stated that he
consulted with the Board of Professional Responsibility concerning limitations on his
practice in the months just prior to assuming elected office in September 2014. Howevet,
Mr. Funk did not to our knowledge seek an opinion from the Board conceming
simultaneous state employment from June through August 2014.

7.

Mr. Funk was enrolled as a member of the State's DB Legacy Plan effective June 23,2014.
His enrollment in that Plan gave him a financial benefit he would not have received under
the Hybrid Pension Plan, defined below in Section IV(3Xa). Mr. Funk assumed
contribution levels under the terms of the "Hybrid Pension Plan" beginning with the
February 2015 payroll period.

8.

The State of Tennessee paid Mr. Funk a part-time salary for his employment with the
Conference from June 23,2014, through August 31,2014.

9.

The State paid insurance premiums and medical insurance benefits to, or for the benefit of,
Mr. Funk during his employment with the Conference. However, Mt. Funk was not a fulltime state employee and, thus, did not qualify as an eligible participant in the State's
Partners for Health Insurance Plan. The Conference facilitated this error by completing
the enrollment form signed by Mr. Funk, designating him as a full-time employee, and
submitting the incorrect information to the Department of Finance and Administration.
The Conference Executive Director assigned Mr. Funk only one case and paid him aparttime salary. Thus, he knew that Mr. Funk would not be a full-time employee.

IV. ANALYSIS
A public servant commits offrcial misconduct when, with the intent to obtain a benef,rt (or
to harm another), he knowingly (1) commits an act related to his office or employment that
constitutes an unauthorized exercise of power; (2) commits an act under color of his office or
employment that exceeds his official authority; (3) fails to perform a legal duty that is clearly
inherent in his office or employment; (4) violates a law relating to his office or employment; or
(5) receives a benefit not otherwise authorized by law. Tenn. Code Ann. $ 39-16-a02@). A
"public servant" includes any person "elected, selected, appointed, employed, or otherwise
designated as . . . [a]n offrcer, employee, or agent of government." Tenn. Code Ann. $ 39-16401(3). The offense of official misconduct is a Class E felony. Tenn. Code Ann. $ 39-16a02(eX1).

J

 1

Mr. Funk intended to obtain the benefit of the DB

Legacy Plan through his

employment with the Conference.
The sole purpose of Mr. Funk's employment by the Conference was to gain access to the
Legacy
Plan, which was closed to new state employees before he assumed elected offtce as
DB
District Attorney General on September 1, 2014. Mr. Funk and former Executive Director Kirby
discussed ways to place him on the State's payroll before July 1, 2014, but Mr. Funk's initial
efforts to secure a job with the Conference or to assume elected office early were unsuccessful.
With the effective date of the change in the state retirement plan approaching, Executive Director
Kirby arranged a part-time staff attorney position for Mr. Funk that would "overlap" with that of
the Conference's full-time staff attorney. In a February 9, 2015, email to his employees at the
District Attorney General's offrce, Mr. Funk explained that "[t]he conference [ ] suggested that I
serve as a part-time staff attorney while continuing and completing my defense practice. Doing so
qllowed me to enroll in the TCRS as it existed at the time of my election." (Emphasis added.)
2.

Mr. Funk was not authorized to serve as a part-time Conference employee, whose
duties involved the prosecution of criminal cases as a district attorney general pro
tempore, because he continued to represent criminal defendants during his
employment period.

Tennessee Code Annotated $ 8-7-3I1(c) imposes express limitations on the practice of law
by employees of the Conference. The employment of an attorney as a part-time employee is

govemed by Tenn. Code Ann. $ 8-7-31 1(c)(2), which prohibits an employee from engaging in the
defense of criminal cases if the employee's duties will involve, or in the future may involve, the
prosecution of criminal cases as a district attomey general pro tempore. Mr. Funk knew when he
accepted the position with the Conference in June 2014 that his duties would or may in the future
involve the prosecution of criminal cases, and his'continued criminal defense practice thus
disqualified him from holding that position.l In addition, Executive Director Kirby failed to obtain
the approval of the duly elected Conference offrcers to hire Mr. Funk as required by Tenn. Code
Ann. $ 8-7-311(a).

employment arrangement with Executive Director Kirby included an
understanding that he would continue his criminal defense practice until assuming elected office
on September 1, 2014. S¿e February 9,2015, email quoted above. Mr. Funk in fact represented
criminal defendants in Davidson, Sumner, Cheatham, Williamson, and Rutherford Counties
between June 23, 2014, and September 1, 2014. This continued practice of representing
defendants disqualified him at the outset from serving in the staff attorney position that Mr. Kirby
assigned to him.

Mr. Funk's

I In the course of this

investigation,

Mr. Funk and others have assigned various titles to his position with the

Conference. For example, Mr. Funk has referred to his position variously as "part-time staff attomey," "pro tem staff
attomey," "DA pro tem," and "part time, salaried independent prosecutor on call." Mr. Kirby represented the position
as a "hybrid" paft-time "staff attorney," "pro tem prosecutor," and "staff attorney (part time)." Mr. Funk's
employment forms designated his position as "Assistant DA." Tennessee Code Annotated $ 8-7-3 11, however,
governs the employment of attorneys by the Conference regardless of what title is used to describe the position.
4

 On May 13, 2014, Mr. Funk sought an informal opinion from the Tennessee Board of
Professional Responsibility ("the Board") regarding the statutory prohibition against the practice
of law by district attorneys general under Tenn. Code Ann. $ 8-7-104 in preparation for closing
his criminal defense practice before assuming elected office. Mr. Funk did not inquire of the Board
about the practice restriction set forth in Tenn. Code Ann. $ 8-7-311(c)(2)(B), nor to our
knowledge did he inform the Board that he had accepted a part-time position with the Conference
that would involve the prosecution of criminal cases as a district attorney general pro tempore.
3

received benefits not otherwise authorized by law as a result
Conference employment.

Mr. Funk

^.

of

his

The Pension Benefît

Under the DB Legacy Plan, the State contributes 22.87% of a District Attorney General's
salary, and the employee contributes nothing. The Hybrid Pension Plan, which became effective
for new state employees on July 1, 2014, has two parts. The first is a contributory plan in which
the State contributes 4%o of the employee's salary, and the employee is required to contribute an
additional 5% of his salary. The second part is a a01(k) plan in which the State contributes 5o/o of
the employee's salary and the employee has the option to contribute an additional2%o of his salary.
In other words, the total State contribution for the Hybrid Pension Plan is capped at 9o/o of an
employee's salary. Participation in the DB Legacy Plan over a full eight-year term of office thus
presented a significant financial benefit to Mr. Funk, because the State paid more under the DB
Legacy Plan and Mr. Funk was not required to make contributions as he would have been under
the Hybrid Pension Plan.

After questions arose in 2015 surrounding Mr. Funk's Conference employment and
pension eligibility, the Conference requested that Mr. Funk be re-classified in the Tennessee
Consolidated Retirement System with an employment starting date of September I,2014. Mr.
Funk assumed employee-employer contribution levels under the terms of the Hybrid Pension Plan
beginning with the February 2015 payroll.
Before then, however, the State paid 22.87% of Mr. Funk's salary into the DB Legacy Plan
from June 2014 through January 2015. Under the Hybrid Pension Plan, Mr. Funk would have
received only 9%o in combined state pension and 401(k) contributions. In addition, enrollment in
the DB Legacy Plan allowed him to avoid payment of 5Yo in employee contributions from
September 2014 through January 2015. Mr. Funk thus received a financial benefit through excess
employer contributions under the DB Legacy Plan and unpaid employee contributions required by
the Hybrid Pension Plan.

b.

The Salary Benefit

Mr. Funk received a state salary as a part-time Conference employee from June 23,2014,
to August 3I,2014. However, the investigation revealed that he performed virtually no work in
exchange for that payment.

5

 Executive Director Kirby publicly stated in response to media inquiries that he hired Mr.
Funk because another Conference employee, Ms. Brooke Orgain, had decided to leave the office
and Mr. Kirby "needed someone to fill this need until I could find an attomey to take over [Ms.
Orgain's] position." When confronted with the fact that Ms. Orgain did not submit her resignation
until September 2014 and remained with the offrce until September 30, a month after Mr. Funk
was no longer a staff attomey, Mr. Kirby stated that he hired Mr. Funk to lighten Ms. Orgain's
case load in anticipation of her departure from the offrce. However, Ms. Orgain received nine new
cases to Mr. Funk's one case while he was on the Conference staff.
The first apparent contact Mr. Funk had with anyone associated with his assigned case (a
prosecution for alleged theft of state funds by a Rutherford County attorney) took place on August
6,2014, approximately six weeks after his employment began, when he left a voice mail message
for a Department of Children's Services ("DCS") investigator, who returned the call the following
day. Mr. Funk eventually spoke with the investigator on September 10, 2015, in a conversation
that lasted approximately five minutes. Mr. Funk advised that he would get back with the
investigator after drafting letters to the victims and submitting the case to the Rutherford County
grand jury, but he had no further contact with the DCS investigator.

In the meantime, on September 1,2014, a family member involved in the matter contacted
Rutherford County District Attorney General Jennings Jones inquiring why nothing had been done
on the case, which prompted General Jones to make a second request to the Conference for the
appointment of a district attomey general pro tempore. The matter was reassigned to District
Attorney General Kim Helper and ultimately handled by her offtce. When General Helper
received the file, there was no indication that any work had been done on the case. The case was
presented to the Rutherford County grand jury in February 2015, resulting in an indictment for
theft.

c.

The Health and Life Insurance BenefÏt

Mr. Funk enjoyed the benefit of health and life insurance coverage during the period of his
employment by the Conference. The State paid premiums for that coverage, and Mr. Funk made
claims incurred while he had coverage as a Conference employee.
V. REMEDIAL ACTIONS TAKEN

Mr. Funk and the Conference have agreed to take remedial measures to address the
circumstances set forth in this Report. On February 24, 2015, Conference members voted to
suspend without pay for one month Executive Director Kirby effective March 1,2015. Mr. Kirby
resigned his position effective that same date, and former District Attorney General V/illiam C.
Whitesell assumed the position of Interim Executive Director of the Conference in March 2015.2
Interim Executive Director Whitesell complied with requests for information by the Senate
Judiciary Committee concerning Mr. Funk's employment and has cooperated fully in the course
of this investigation. The Conference also referred the matter to the Tennessee Board of
Professional Responsibility for independent review.

2In June 2015, the elected District Attorneys General,

as members of the Conference, selected Jerry Estes, former

District Attorney General for the lOth Judicial District, to serve
6

as

Executive Director.

 On March 19,2015, in a letter to Senate Judiciary Committee Chairman Brian Kelsey, Mr.
Funk stated his intention to withdraw from the DB Legacy Plan and to enroll in the Hybrid Pension
Plan. Mr. Funk assumed contribution levels in accordance with the terms of the Hybrid Pension
Plan beginning with the February 2015 payroll period. On March 20,2015, Mr. Funk requested
that the Conference Human Resources department calculate all monies expended for salary and

insurance from June through August 2014 in order to reimburse the State for those funds. In
addition, this Office is advised by Mr. Funk that, upon the issuance of this Report, and by thereafter
cooperating expeditiously with appropriate State offrcials, Mr. Funk will promptly repay all
amounts owed to the State and that he agrees to any reclassification necessary to correct the errors
made in his TCRS membership.

Finally, at the request of this Office, the Conference leadership has agreed to implement
processes and procedures to ensure compliance with all state laws and policies related to
employment and benef,rts and to submit to a special audit by the Comptroller of the Treasury at the
conclusion of one year to ensure those measures are being executed effectively.

VI. CONCLUSION
Pursuant to Tenn. Code Ann. $ 8-6-112,the Attorney General is authorized to investigate
and prosecute crimes committed by district attorneys general. In order to seek an indictment for a
criminal offense, this Office must be convinced that the potential criminal defendant committed a
crime under Tennessee law and that the State would likely prevail at atrial in which the criminal
charge must be proven beyond a reasonable doubt.

The evidence obtained during this investigation leads this Offrce to conclude that no
criminal prosecution is warranted in this matter. The aforementioned facts exhibit that those
associated with the hiring of Mr. Funk by the Conference exercised poor judgment and failed to
give appropriate attention to the statutory provisions goveming the hiring of staff attorneys by the
Conference. Mr. Funk's part-time employment with the Conference was designed to give him a
financial benefit to which he otherwise would not have been entitled when he assumed elected
office on September 1, 2014, and he received pension, salary, and health insurance benefits for
virtually no work. Moreover, his simultaneous defense of criminal cases violated State law related
to the part-time employment of attomeys by the Conference.
However, Mr. Funk has maintained that he was unaware of the statutory restrictions
applicable to his Conference employment and that he justifiably relied on the advice of Conference
personnel with respect to the position requirements, his ongoing criminal defense practice, and the
submission of all necessary and proper employment paperwork relative to his position there. This
consideration mitigates to some extent Mr. Funk's culpability in the matter. This Office is satisfied
that the remedial actions to be taken by Mr. Funk will indemnify the State for its financial loss,
and institutional controls implemented by the Conference, which will be substantiated by a future
Comptroller audit, should prevent the recurrence of similar circumstances.
Under these circumstances, the Attorney General will not initiate criminal proceedings
related to the actions described in this report. This Office hopes this report and the remedial actions

7

 to be taken by Mr. Funk and the Conference will conclude this matter and will prevent similar
issues from recurring in the future.

8

 FOR IMMEDIATE RELEASE:
Statement from General Glenn Funk
(December 1, 2015)
From day one I have cooperated fully with the Attorney General during his inquiry
into the circumstances of my employment as a part time pro tem before taking
office as District Attorney. In order to establish a clear understanding of my
employment, the historical context of the pro tem program needs to be provided.
When a conflict precludes a prosecutor from handling a case, that prosecutor sends
in a request to the District Attorneys Conference for a pro tem to be appointed to
handle the case. Many times the Conference has appointed a pro tem who is an
Assistant DA in another judicial district. Due to the volume of these cases, using
exclusively pro tems from other districts proved to be prohibitively inefficient.
For over a decade, the Conference chose to address these real problems by hiring
former prosecutors as part time pro tems. At least a dozen former prosecutors have
served as such pro tems, many of whom were practicing criminal defense attorneys
at the same time. The Conference selected these individuals because of their
expertise in criminal law and their aptitude as prosecutors. In order to handle these
cases in an effective manner, it was necessary to hire lawyers familiar with and
experienced in the practice of criminal law. Hundreds of cases have been assigned
to and handled by criminal defense attorneys serving as pro tems. During this
inquiry, several past and present elected DAs have written letters which were
submitted to the Attorney General stating that they were well aware and approved
of the long held practice of hiring criminal defense attorneys as pro tems.

In furtherance of this approach, the Conference applied for, and received, a federal
grant each year from fiscal year 2004-2005 through 2014-2015. This grant was
specifically to help pay these attorneys to serve as pro tems. The total received
from the federal government over that 11 year period was over $750,000.
I served the District Attorneys Conference as a pro tem beginning in approximately
2008. In fact, my campaign literature cited my experience as a special prosecutor
as one of my qualifications. When I was offered the part time position in June
2014, I did not see any problem with accepting the position while finishing my
criminal defense practice. This was based on my experience, my knowledge of
other defense attorneys in the program and the advice of the Executive Director of
the Conference. Prior to this inquiry, no one ever complained about the pro tem
program or any individual's participation in the program. No member of the DA's
Conference objected or voiced any concerns about the hiring of former prosecutors
as District Attorney pro tems who were practicing criminal defense.
Today's Attorney General report indicates that this practice should end. I feel
certain the Conference will change their long held practice and follow these new
directions. However, my pro tem employment should be viewed within the
context of the decade plus practice of the Conference.
Prior to my election, I served as an Assistant DA for 3 1/2 years and served and
worked in private practice for 25 years. Becoming District Attorney presented
some hurdles and some ambiguities as it has for many other current and former
elected DAs. I frequently sought advice from the Board of Professional
Responsibility and the District Attorneys Conference as I navigated this transition.
I understand that District Attorneys are held to a higher standard. I regret that this
issue has given the impression that I was afforded an opportunity not afforded to
others. District Attorneys across the State and the Attorney General serve the most
important functions in our legal system. I am glad this inquiry is now complete. I
can assure you that this matter did not distract anyone from the great work being
done by this office. A list of some of the recent accomplishments of the office is
attached.

Accomplishments since September 2014:
?

Reorganized and expanded the Domestic Violence Unit to include nine lawyers who are
focused on protecting victims and breaking the cycle of violence.

?

Created the Domestic Violence Prosecution Support team to offer protection to victims
who may be intimated about coming to court.

?

Doubled the number of attorneys handling child protection cases supporting child victims
of physical and sexual abuse.

?

Created a human trafficking unit to properly investigate and prosecute predators who
enslave women and move them across jurisdictions in an effort to permanently control
them.

?

Formed Grace Empowered, a court ordered prostitution intervention program designed to
address issues such as drug addiction, trauma, and the health and safety implications of
prostitution. Housing options are also provided for those individuals who are prepared to
turn their lives around.

?

Decreased the delay between cases being bound over to being indicted from 110 days to
95 days, saving tax dollars while getting defendants and victims into court more quickly.

?

Began coordination with the Elder Abuse Task Force in an effort to protect our elderly
citizens from physical and financial abuse and ensure stronger prosecution of these cases.

?

Revamped policy on jail time for people driving with a suspended driver's license which
resulted in 7,200 fewer inmate days in jail and saved the county over $720,000 while
allowing those citizens to work and take care of their families.

?

Launched partnership between Meharry Medical College, the Davidson County Sheriff's
Office and Mental Health Court to address the criminal justice approach to offenders with
mental health and substance abuse issues.

?

Established partnerships and liaisons with Metro Police precinct commanders to identify
problem areas for crime, enhance communication between police and prosecutors and
solve issues more effectively.

?

Participated in more than 100 community functions-from Bringing Justice to You events
to Night Out Against Crime, faith-based gatherings and neighborhood meetings.

?

Worked with nonprofit partners including the YWCA, Tennessee Voices for Victims,
You Have the Power, Morningstar, End Slavery Tennessee, NOAH, Project Return,
Dismas House, Thistle Farms in an effort to make Nashville a safer and healthier
community.