Waller Lansden Dortch Davis. LLP 615.244.6330 main 511 Union Street, Suite 2700 615.244.6804 fax P.O. Box 198966 wallerlawxorn Nashville, TN 372196966 Robert E. Boston 615.850.8953 direct bob.boston@wallerlaw.com March 23, 2015 By Hand Delivery CONFIDENTI A1 Elizabeth C. Garber, Esq. Disciplinary Counsel Tennessee Board of Professional Responsibility 10 Cadillac Drive, Suite 220 Brentwood, Tennessee 37027 Re: File No. aotsa?s?BG File No. Dear Ms. Gerber: I represent Davidson County District Attorney Glenn Richard Funk in connection with the two matters you sent to General Funk by letter on February 23, 2015 and February 25, 2015, respectively. Yours request a response to the letters? attached submissions involving complaints submitted to your of?ce. Both submissions relate to General Funk?s employment as a part-time staff attorney with the District Attorneys General Conference during the period between June 23, 2014 and September 1, 2014. Based upon our recent conversation, I understand that you will consider them as part of one investigation. Your letters request a clear and concise statement concerning the matters which are the subject of the submissions. General Funk takes any question regarding his ethical obligations under the Tennessee Rules of Professional Conduct very seriously and his response to this recent controversy, both as a publicly elected of?cial but just as importantly a member of the Nashville and Tennessee bars, re?ects that respect. He appreciates the opportunity to respond to the submissions. He hopes that his response fully addresses the questions you may have, and that this matter should be closed without further action upon full investigation and consideration by your of?ce?l 1. Summary of the Facts Glenn Funk has practiced law in Nashville since 1986. During that time, he has served as an Assistant District Attorney, started his own law practice and, since September 1, 2014, served as Davidson County?s 36th elected District Attorney General. In his career, he has earned an excellent professional and personal reputation, including an rating? from Martindale Hubbell held for over 10 years. I The media report attached to your February 25, 2015 letter was not signed by the complainant, and thus the complaint could be procedurally in?rm under Section 15.1(a) of Tennessee Supreme Court Rule 9 governing Disciplinary Enforcement. Rule 15.1(a) provides that all complaints "must be signed by the complainant.? Regardless, for purposes of full and transparent disclosure, the issues raised in the report are fully addressed. wallet? Elizabeth C. Garber, Esq. March 23, 2015 Page 2 General Funk ran for election and won the Democratic primary for the position of District Attorney General on May 7, 2014. Because the following general election was uncontested, General Funk was effectively elected as District Attorney General on that same date. His starting date in the position was anticipated to be September 1, 2014. After the primary, General Funk had learned that the Tennessee non-contributory pension plan under which he expected to be eligible was subject to an upcoming change. Since he had prior state service as an Assistant District Attorney from 1986 to 1989, he was interested in knowing which plan would cover him. To investigate whether he would be eligible for the existing state plan, he made several inquiries. First, he consulted with the Conference?s Director of Human Resources to see if he would be eligible under the pension plan due to his previous service as an Assistant District Attorney. She advised him that he would not be eligible. General Funk then wanted to see if he could begin performing his public duties before his normal start date, or even in another role. He inquired of the District Attorney General in of?ce at the time, Hon. Torry Johnson, to see if he might be amenable to begin their impending transitions by allowing General Funk to take of?ce early, as was done in a county in East Tennessee. General Funk had learned of some angst in the office he was shortly to assume caused by the election results and anticipated upcoming changes in it (Gen. Johnson did not run for reelection). General Johnson declined the inquiry, being of the expressed view that he had been elected to serve to the end of his term and planned to do so. General Funk then asked if he could apply for hire in the office into a full?time, sworn Assistant District Attorney position under General Johnson before assuming of?ce as the District Attorney. He was told that no positions were then available. General Funk also discussed the possible options with the long?time Executive Director of the Tennessee District Attorneys General Conference (?the Conference?), James Kirby. Mr. Kirby advised him that there was an opportunity for hire as a partwtime staff attorney through the Conference, who would be assigned to prosecute, pro-tern, cases as they arose that full?time prosecutors were unable to prosecute from their originating offices. I believe that Mr. Kirby anticipated a need as the lawyer he was then using was quite busy, and on top of that had, recently suffered a broken foot. Thus, Mr. Kirby offered, and General Funk accepted, an intended part-time salaried staff attorney position beginning on June 23, 2014, and he was paid a salary commensurate with that part time position. Under the then applicable pension procedure, General Funk was correspondingly permitted to enroll in the existing non? contributory state pension plan in place at the time. Before accepting the position, General Funk made sure that Mr. Kirby, who had served as the Conference Executive Director for over 20 years, knew that he intended to accept the part?time staff attorney position while winding down his Nashville-based criminal defense practice. Mr. Kirby raised no objections or concerns, nor had General Funk identi?ed any in his analysis. In his February 3, 2015 letter regarding the ?Retirement issue,? attached as Exhibit A, Mr. Kirby con?rms that in his many years as Executive Director, the Conference had many former Assistant District Attorneys, like Funk, handle cases when the originating office was unable to do so: ?[m]any of these were otherwise practicing law on a full time basis.? He further confirmed that he and General Funk discussed that the part-time staff attorney position ?would 4830?5836?1890.1 Waller Dortch Davis, LLP waiter? Elizabeth C. Garber, Esq. March 23, 2015 Page 3 not preclude him from practicing law until such time that he was sworn in as the District Attorney.? That was also General Funk?s understanding, which was based on his conversations with Mr. Kirby, his previous experience prosecuting pro tem cases, and his awareness of other attorneys who have continued, and still continue, the fullatime private practice of law during their course of service as pro tem prosecutors who serve on a case by case basis. As part of the enrollment process in the position, General Funk ?lled out his portion of the employment paperwork. Other parts of it were completed by an employee in the Conference?s Human Resources department. When ?lling out its part of the employment forms, the Conference employee marked on the pension enrollment form - General Funk as an Assistant District Attorney and a full-time employee. General Funk was unaware that he was marked as such before it was reported by the local media, and he certainly never contemplated either of those statuses. While ?lling out his employment forms, the Conference employee also instructed General Funk to ?ll out related paperwork enrolling him in the state?s health insurance plan, and he did so. Though General Funk was not seeking this position for the purpose of obtaining health insurance, the Director of Human Resources informed him that it was mandatory to enroll in the health insurance plan during his service as a part?time staff attorney in order to be covered under the health insurance policy once he took of?ce as District Attorney General on September 1, 2014. Otherwise, he would not have any insurance until January 1, 2015 due to the open enrollment for the state plan being between October and December, 2014. It is General Funk?s understanding that it was Conference policy for the forms to be ?lled out as they were, and that, according to the Director of Human Resources, she handled part?time assistant district attorneys in this same manner for years as that was the procedure used since she was trained for her position many years ago. General Funk?s ?rst day as a part-time staff attorney was June 23, 2014. In July of 2014, he was assigned his ?rst case to prosecute, it being in Rutherford County. While he had no control over it or any other, this was the only assignment he was given by the Conference during his short period of service for it. He began to work the case on the part-time basis of his employment. He reviewed the case ?le, spoke with persons having background knowledge of it, spoke with the originating of?ce in Rutherford County to obtain information on the case, and began to prepare it for presentation to what he anticipated then would be to the Rutherford County Grand Jury. After he took of?ce as Davidson County District Attorney General on September 1, 2014, the case was re?assigned from the Conference to an Assistant District Attorney in another county. General Funk had no role in that decision. He has not been asked to provide any additional legal services on the matter. On February 9, 2015, the local media broadcast a report, the text of which is attached to your February 25, 2015 letter, containing allegations regarding General Funk?s acceptance of the part?time staff attorney position. On February 18, 2015, the Conference submitted a letter to the Board, regarding the same issues, despite its Executive Director?s offer of the position to General Funk with full knowledge that he would be winding down his criminal defense practice during the time he would be serving as a part?time staff attorney. General Funk was not aware of the 4830-5836-1890.1 Waller Lansden Dortch 8: Davis, LLP wallet" Elizabeth C. Gerber, Esq. March 23, 2015 Page 4 statute cited in your letter and the report at the time the position was offered and accepted. He does not believe that either was Mr. Kirby. Since then, General Funk has been publicly interviewed and participated in other discussions about the matter. In each, he has attempted to be open and candid, and has been truthful as expected. Though General Funk ?rmly believes he did not violate any of the Rules, and in fact rather made every effort to be transparent to ensure that he was following them, he recognized that the issue had become a distraction from his and others? work in the Davidson County District Attorney?s of?ce. Therefore, General Funk informed Chairman Brian Kelsey, a Tennessee Senator and member of the Tennessee Senate Judiciary Committee, that he is refunding all funds paid him, including $4,000 in salary and costs for health insurance during his 1o~week tenure, will withdraw from the state pension program to which he was admitted in June, and re?enroll in the pension plan that was implemented to begin after July 1, 2014. He did so in order to address any questions regarding his commitment to his position and to his ethical obligations. His con?rming letter to Senator Kelsey is attached as Exhibit B, and the funds will be refunded upon his return to Nashville the week of March 23 when he returns to town following a family vacation in Florida last week. 11. General Funk?s Response to the Allegations Contained in the Two Submissions Neither the letter nor the media report submitted to your office reference any speci?c disciplinary rule. The submissions appear to suggest that General Funk continued to wind up his criminal defense practice while working as a part-time staff attorney with the District Attorneys General Conference in violation of T.C.A. In his February 18, 2015 letter to your of?ce, however, Conference President Garry Brown, the elected District Attorney General for the 28th Judicial District, made clear that ?[d]uring his time of employment as a part?time assistant district attorney, General Funk was unaware of the prohibition in T.C.A. 8-7? In addition to reiterating issues regarding the statute referenced in General Brown?s letter, the media report appears to suggest that General Funk: (1) inappropriately sought a part? time position with the Conference for the purpose of being eligible for a more favorable pension plan in place at the time than would have been after September 1, 2014; (2) failed to perform work during his tenure as a part-time staff attorney; (3) misrepresented that he was a full-time employee on a state pension enrollment form; and (4) enrolled in Tennessee?s health insurance plan even though he did not qualify in his position as a part?time staff attorney. From my reading, it appears that the submissions, as are relevant to the Board of Professional ReSponsibility?s role, collectively suggest conduct potentially implicating Rules 1.7- and 8.4. Rule 1.7 relates to ?Concurrent Conflicts of Interest.? Rule 8.4 relates to ?Professional Misconduct.? With complete respect for the investigation, General Funk did not violate either Rule. At all times concerning the subject of the allegations in the media report, General Funk has been open and honest regarding his actions. He certainly did not intend to overlook any available guidance. General Funk took a proactive approach throughout his transition to the of?ce of Davidson County District Attorney having no less than 5 conversations with James Vick 4830583648904 Waller Lansden Dortch 8: Davis, LLP wallet? Elizabeth C. Gerber, Esq. March 23, 2015 Page 5 of your office to make sure he did not inadvertently misstep in any way in that changeover. These included outreaches to Mr. Vick on various topics, including potential conflicts of interest regarding prosecution of his former clients by the Davidson County District Attorney?s Of?ce and a potential personal con?ict of interest held by a prospective employee. Based on his conversations with Conference Executive Director Kirby and his previous experience as a pro tem prosecutor, he believed acceptance of the partvtime staff attorney position comported with the Rules. Each time, that was coordinated with the Conference through Mr. Kirby. There was no notice to him, or found by him, that acceptance of the offered job position would constitute any ethical violation. Therefore, it did not occur to him to reach out to Mr. Vick on this particular issue as he had done with others which arose during his transition. His acts demonstrate a respect for the Rules, not any intent ?to go around? them as the media reports suggest. In addition to its reference to T.C.A. the media report also raises various suggestions which do not implicate the Rules. Out of an abundance of transparency and full context, General Funk will brie?y address those allegations, too. A. Allegations Relating to Tennessee Rule of Professional Conduct 1.7 Regarding Concurrent Con?icts of Interest Though not speci?cally cited in it, the enclosures of your letter raise an issue about Rule 1.7. Under Rule a lawyer is prohibited from taking a representation if there is ?a signi?cant risk that the representation of one or more clients will be materially limited by the lawyer?s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.? Under the provision, an attorney may represent a client with an existing conflict of interest if certain stated requirements are met, including waiver by the client. Some con?icts, including those prohibited by law, cannot be waived by clients. Rather than discuss Rule 1.7, the submissions suggest that General Funk violated T.C.A. The statute states that the executive director [of the District Attorneys General Conference] employs an attorney as a part?time employee, such employee 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 the prosecution of criminal cases either as a part?time assistant district attorney general or a district attorney general pro tempore.? The media report alleges that, because he continued winding down his criminal defense practice during the 70 days he served part?time as an unsworn staff attorney, General Funk violated the statute. What is improper under T.C.A. for one in a part?time staff attorney position offered and ?lled by the Conference while she or he is winding down a criminal defense practice to take on an uncontested elected position is unprecedented in Tennessee case law. My research has revealed no case re?ecting a prosecution under, or even a citation to, the cited statutory provision. The statute includes no punishment or other remedy for a violation. By accepting a position as a part-time staff attorney, who was both salaried and unsworn, rather 4830?5836-1890a Waller Lansdea Dortch Davis, waiter Elizabeth C. Gerber, Esq. March 23, 2015 Page 6 than a sworn part-time assistant attorney general or district attorney general pro tempore, it is not at all certain that the terms of the statute as written are even here implicated. Though the submissions discuss T.C.A. the direct question under the purview of the Board would seem to be whether acceptance of the part-time staff attorney position violated Rule 1.7? How General Funk?s acceptance would violate Rule 1.7 is even less clear. General Funk accepted the part?time position knowing that the Conference has consistently over the years hired lawyers with full?time private practices to prosecute matters on a case by case basis. He had himself been asked to prosecute such cases in the past. His understanding based on conversations with Mr. Kirby, and his own past experience, was that handling such cases while continuing to represent clients in private practice did not violate the ethical rules, because such prosecutors were unsworn and independent of any particular District Attorney?s of?ce. While we have found no case law addressing General Funk?s situation under Rule 1.7, we are aware of the Board?s Formal Ethics Opinion Number The Opinion relates to an inquiry regarding the ?ethical propriety of part-time Assistant District Attorneys? representation of criminal defendants within the same judicial district [in which they are sworn].? The Board limited its Opinion to the inquiry at hand and found the representation of criminal defendants in that speci?c situation to be ethically inappropriate. Its decision highlighted the prosecutors? oath of of?ce. In it, the attorneys swore to ?uphold and apply state law in prosecutions and to assist municipal, county, and state law enforcement of?cers in prosecuting alleged crime.? The Board also focused on the appearance of impropriety created when those sworn prosecutors represented criminal defendants, in the same court in which they were prosecuting, due to the inherent relationships that exist between prosecutors and law enforcement. Formal Opinion Number 200 is eXpressly limited to the inquiry presented to it. Its terms do not seem to cover General Funk?s winding up of his representations of criminal defendants and interim service as a part-time staff attorney of the Conference. General Funk was not a sworn prosecutor in any given District, and thus did not report to any particular District Attorney. Instead, he served as an independent prosecutor employed part?time by the Conference to prosecute cases on an assigned basis when others could not prosecute. As such, no appearance of impropriety was created by potential relationships between law enforcement and himself. Indeed, the only case to which he was assigned as a part-time staff attorney was re? assigned while still in the investigatory phase and before he had made any appearance in court. During that time, General Funk wound down his private practice over a ?nite and known period of 10 weeks. This situation was not remotely one of ?playing both sides? as insinuated by the media. He took the position with the knowledge of and full involvement of the Conference and in accordance with its policies. As explained in Mr. Kirby?s February 3, 2015 letter regarding ?Pro?tam Prosecutors,? attached as Exhibit C, without such policies cases in which the originating office had a con?ict would go unprosecuted. There was no intent to ignore or end run any obligation, indeed just the contrary. General Funk is also aware of the decision in State v, White, 114 469 (Tenn. 2003), regarding conflicts of interest faced by a defense attorney who also served as a part?time Waller Lansden Dortch Davis, LLP waiter Elizabeth C. Garber, Esq. March 23, 2015 Page 7 prosecutor. Similar to the circumstances addressed by Formal Opinion Number coon?F446, the criminal defense counsel in White also served as a sworn part-time prosecutor in the same county in which he maintained his private practice. Id. at 472. The Court?s decision similarly emphasized the con?ict that can arise from the relationship of a sworn part?time prosecutor with law enforcement in the same county in which the prosecutor practiced criminal defense. Id. at 478. It held that because of this relationship, the part-time prosecutor lacked independence from the District Attorney?s of?ce and had inconsistent obligations rising to the level of a conflict of interest. Id. Thus, the Court upheld the trial court?s decision to disqualify the attorney, not to impose discipline, from representing a criminal defendant in the same district in which he was sworn as a part-time prosecutor. As set forth in regard to the importance of Formal Opinion Number General Funk?s situation also differs greatly from the one considered by the Court in State v. White. Unlike there, General Funk was not a sworn prosecutor reporting to any particular District Attorney, and thus had no relationship with the District Attorney?s of?ce or with law enforcement in any particular county such that he lacked independence from them giving rise to a con?ict of interest. The factual concerns raised in State v. White are not here an issue and never were implicated. Further, State v. White differs procedurally in that it addressed the question of whether the attorney was properly disquali?ed from representation, not whether he or she should be disciplined under the Rules of Professional Conduct. In sum, the submissions that have been suggested about General Funk raise issues insinuating that he may have engaged in conduct which violated Rule 1.7. He respectfully disagrees. His service as a part-time staff attorney with the Conference over a 10?week period, who was assigned to one case for which he never appeared in court, while winding down his criminal defense practice, appears unprecedented under applicable law. Unlike the White case, General Funk had no ongoing relationships as a prosecutor with law enforcement and the District Attorney?s office in Rutherford County. Because here there was not ?harm or risk of harm to the client, the public, the legal system or the profession,? his explained and appropriately intended conduct should not rise even to a level justifying discipline under Tennessee Supreme Court Rule 9, Section 12.6. General Funk openly accepted such an arrangement with the Attorneys General Conference Executive Director, and both of them believed the position to be in accordance with its policies. He was not secretly trying to ?go around? the law or ?use it for his own bene?t.? To the contrary, he believed that acceptance of the position would meet all ethical obligations, as he and Mr. Kirby saw no difference between this position and the service of any other pro tem prosecutor who worked for the Conference on a case by case basis. B. Allegations Relating to Tennessee Rule of Professional Conduct 8.4 Erohibitiug Professional Misconduct The media report enclosed with your February 25 letter appears to imply that General Funk misrepresented that he was a full-time employee on his hiring enrollment forms for the state pension plan and health insurance bene?ts. He did not. The report implies that any mistakes on the forms were intentional and caused by him. That suggestion could be interpreted, albeit wrongly, to implicate Rule 8.4. Waller Lansden Dortch 8: Davis, wetter Elizabeth C. Garber, Esq. March 23, 2015 Page 8 Rule 8.4 provides that ?it is professional misconduct for a lawyer to: violate or attempt to violate the Rules of Professional engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.? General Funk did none of these. He made no misrepresentations in connection with his enrollment for bene?ts connected with the staff attorney position. A suggestion otherwise is not factually correct, much less justifying discipline. As stated in Mr. Kirby?s letter, attached as Exhibit A, General Funk completed only the ?personal information? section and provided his signature on the enrollment form for the pension plan. The remainder of the form was completed by a Conference employee g?teg General Funk had left the Conference office. That employee marked General Funk as a full?time employee and an Assistant District Attorney on the form without his knowledge and not as a result of any statements made by him. He never saw it nor knew of it. He did not cause it. The employee?s notations on the form had no impact on whether General Funk was eligible to enroll in the pension system under then applicable rules; he was. Further, the contribution made by the Conference to the State Plan was at the amount he was paid as a part-time employee, not as a full?time one. The Conference?s Director of Human Resources also informed him that it was mandatory under the Conference?s health insurance policy for him to enroll in the health insurance plan at the time he began his 10?week tenure as a part?time staff attorney, so that he would be eligible to enroll in the health insurance plan when he took office as District Attorney on September 1, 2014. Relying on this representation, General Funk filled out a portion of the health insurance enrollment form as instructed. Any inaccuracies on General Funk?s enrollment paperwork were due to the policies and procedures of the Human Resources department of the Conference and were not the result of any dishonesty or misrepresentation on his part. We learned that those policies and procedures of the Conference date back over 15 years. Any mistakes resulting from the policies of the Conference may demonstrate a need for review of them, but as for General Funk, he relied on and followed the instructions of the Human Resources department. Relevant to the Board?s determination regarding discipline is the lawyer?s mental state. See ABA Standards for Imposing Lawyer Sanctions, used by the Board as referenced in Tennessee Supreme Court Rule 9 governing Disciplinary Enforcement. The attorney?s mental state is one of the four core questions set forth in the ABA Standards, meaning: ?Did the lawyer act intentionally, knowingly, or negligently?? General unk?s reliance on the Conference?s Human Resources department to instruct him regarding the enrollment forms for the pension plan and the health insurance plan was understandable; he did not intentionally, knowingly, or . negligently do anything. He relied on the relevant Human Resources personnel. Reliance upon a Human Resources Director is not included in the mental states described in the ABA Standards for Imposing Lawyer Sanctions, and no issue regarding the direction given to him rises to the level of professional misconduct subject to discipline under Rule 8.4. C. Allegations Not Implicating the Tennessee Rules of Professional Conduct The media report contains innuendo of impropriety in an assumed desire by General Funk to enroll under the state pension plan that was set to expire shortly before he was to take 4830:5836?189oa Waller Lansden Dortch Davis, LLP waiter Elizabeth C. Gerber, Esq. March 23, 2015 Page 9 office on September 1, 2014. There seems nothing improper, respectfully to the media personaiity filing the complaint, in exploring the availability of pension participation in an available plan at the time of a hire. General Funk was not ?gaming the system? by accepting a . position offered by the Executive Director of the Conference that allowed him to legitimately enroll in the pension plan as a part-time staff attorney. By Mr. Kirby?s letter at Exhibit A, for years it has been common practice for attorneys with prosecutorial experience, many of whom were otherwise practicing law in the private sector, to handle cases. in which the originating of?ce had a con?ict on a pro tem basis. The report also discusses the amount of work it suggests General Funk performed during his tenure as a part~time staff attorney. The not so subtle innuendo or allegations are that General Funk did not work a ?sufficient? amount of. hours during his tenure to justify his part- time salary, of course set by the Conference not him and before any volume of tome?assigned cases could have been known. These suggestions do not implicate the Rules, even if fodder for media interest. It is undisputable that General Funk was hired and became available to take assignments as a part?time staff attorney beginning on June 23, 2014. His caseload was determined by the Conference, not him. The position was offered as part time. Whether he was assigned to one case or to many cases was a decision made by the Conference, just as such decisions are made by managers in any other job and have been made for the many other pro? tem district attorneys who preceded him. One never knows what may be the future volume. Whether there was a requirement to report the number of hours worked on any case was within his employer?s discretion. As his part?time compensation was salaried, doing so made no economic impact and had no effect on his work. Any report of the number of hours worked or the tasks he performed on any case, which he was not directed to do by the Conference, could not implicate the Rules regardless of any media-driven purposes surrounding this issue in the report. General Funk hopes that this information from him adequately addresses the allegations contained in the submissions and any potential violation suggested to be implicated. At all times General Funk has conducted himself in an open and communicative manner. He certainly did not intend to violate any Rules of Professional Conduct, as he and the Conference have acknowledged. On his own volition, he has reversed and returned all economic consideration. It is his belief that he should not be subject to discipline and that no further action would be justi?ed concerning this matter. Should you have further questions, I request the opportunity on General Funk?s behalf to provide any supplemental information that you may need to make a decision regarding disposition of this matter. He is available for any personal interview or discussion you may View helpful. KW Robert E. Boston cc: District Attorney Glenn Funk Waller Lansden Davis, LLP TENNESSEE DISTRICT ATTORNEYS GENERAL CONFERENCE JAMES W. EXECUTIVE DIRECTOR February 3, 2015 Re: Retirement issue Dear Mr. Williams, Regarding any issue relative to retirement for Glenn Funk, be advised that the form that he completed' in this of?ce entitled ?Membership Form? was partially completed by an employee 111 this office. General Funk completed the personal information portion of the form and signed same ant had to leave the of?ce. The remainder of the form, basically the of?ce portion such as department code, status, position title etc was completed by the employee here. The Space for employment was ?lled in as full time as was typical on these forms and done routinely. General Funk was certainly not paid a salary for which he would qualify based upon his experience had he been a full time assistant district attorney. He was in the position as a staff attorney (part time), which would only be for a period of about nine weeks until he was sworn in as District Attorney on September 1, 2014. It was obvious that he would not be working or handling cases on a full time basis. This was discussed and understood. We also discussed that this would not preclude him from practicing law until such time that he was sworn in as the District Attorney. We have routinely had former District Attorneys or assistant district attorneys handle cases wherein there was a con?ict in the originating of?ce. Many of these were otherwise practicing law on a full time basis. This has been lessened recently since I have had a staff attorney in the of?ce whose primary duty is to handle these types of cases. That is exactly what Glenn Funk was to do until he Was sworn in as District Attorney. Hopefully this will clarify any misunderstanding that you may have had regarding Glenn Funk being able to practice law while he was serving as a part time staff attorney. 226 Capitol Boulevard, Suite 800 Phone: (615) 741-i696 6 Fax: (615) 741-7459 Nashville, TN 37243?0890 Website: x, 4 "is iir?t at tn an. GLENN R. FUNK District Attorney General March 19, 2015 The Honorable Brian Kelsey 301 6"1 Ave. N. Suite 7 Legislative Plaza Nashville, TN 37243 Dear Chairman Kelsey: I have always believed that all my actions were authorized, legal and ethical. Nevertheless, in hindsight I can understand how this situation may appear as me being afforded an unfair" advantage. When this issue arose, I thought that the best approach would be for the Comptroller?s Of?ce, which has an oversight role for the state, to advise both the District Attorneys Conference and me on the appropriate action to take if any were needed. However, this issue is taking public attention from the reasons I sought this office helping battered women and children, and trying to bring more equity to Nashville?s justice system. in addition, I understand that it is important for the legislature and the public to have complete faith in the integrity of the District Attorneys Conference and the individual District Attorneys. Therefore, so as to remove any questions regarding my state bene?ts, 1 am completing paperwork to enroll in the post July 1, 2014 retirement system, and I am withdrawing from the pension program. Further, I will reimburse the State for any funds disbursed on my behalf for salary and insurance during July. and August 2014. I apologize for the distraction that my actions have caused the legislature and the District Attorneys Conference. have hilly and openly answered all questions about the factual events of this employment. 1 remain available to answer ?nther questions. Sincerely, Glenn R. Funk District Attorney General CRIMINAL DIVISION - 20TH JUDICIAL DISTRICT - DAVIDSON COUNTY Washington Square. Suite 500 I 222 2nd Avenue North Nashville. TN 372014649 Tel. 615 862?5500 Fax 615 862-5599 Ce: Senator Doug Overbey Senator Janice Bowling Chairman Mike Bell Senator Todd Gardenhire Minority Leader Lee Harris Senator Sara Kyle Senator Kerry Roberts Senator John Stevens TENNESSEE DISTRICT ATTORNEYS GENERAL CONFERENCE JAMES W. KIRBY EXECUTIVE DIRECTOR February 3, 2015 Re: Pro~tem Prosecutors Dear Mr. Williams, The issue of Pr0~l61n prosecutors has evolved over the years. For many years when a con?ict arose in a particular office a prosecutor was designated from another district to handle the case. This was the policy when I was elected to this position beginning July 1, 1999 and had been for as long as I can remember. In fact I had served as a Pro-tern prosecutor on occasion while I was an assistant district attorney/deputy district attorney. We continued on this path for a while until it got to the point where we had more Pro?tern request than we could farm out. I applied for and received a grant to allow us to pay retired District Attorneys or assistant district 5 attorneys to handle some of these cases but certainly not all of them. I would typically use these attorneys to handle the more complicated, more serious and likely more cases so that another office would not be disrupted for so long. This worked rather well for a period of time until the grant funds continued to be reduced to the point that only a few cases could be assigned to these attorneys. Finally I was able to get a position in this of?ce for a staff attorney that could be utilized for some of the Protein cases. This too worked rather well. The person in this position, Brooke Orgain decided that she desired a more stable location from which to work and went back to the 23d district as an assistant district attorney. I needed someone to ?ll this need until I could ?nd an attorney to take ove1 Brooke 3 position. I knew that after the primary election Glenn Funk would be the next District Attorney 1n the 2011 1 District, Davidson County, as he had no opposition in the General election. I asked him if he would consider this even in light of the fact that he was closing his private p1actice to take over as District Attorney This seemed to me to be the perfect solution for the interim. He agreed to do so and was employed effective June 23, 2014. Iknew that Mr. Funk was going to be the District Attorney beginning September 1, 2014 and further that he had previously been an assistant district attorney from 1986 until 1989. As you no doubt know, when a DistrictAttorney, or someone in his/her of?ce has a con?ict on a particular case or has a situation that poses an ethical problem or a perceived ethical problem, a Pro? tern prosecutor must be designated to handle those cases. Otherwise the cases would go unprosecuted. That is not a situation that we will allow to take place. Hopefully this will answer your bestions relative to the above. /Sincer lyg? (j datP?esW .K1rby 226-Capitol Boulevard, Suite 800 . Phone: (615) 741-1696 - Fax: (6l5) 741?7459 Nashville, TN 37243-0890 Website: