What to do about Broward Sheriff, his lies and scalding FDLE report? Three months on, Gov. DeSantis can’t, or won’t, make a decision

By Dan Christensen, FloridaBulldog.org

Three months into pondering what to do about Broward Sheriff Gregory Tony, who public-corruption agents found repeatedly lied over the years on official records, Gov. Ron DeSantis continues to ponder as an anxious sheriff’s office wonders what’s going on.

A two-year investigation by the Florida Department of Law Enforcement determined last year that many of Tony’s alleged lies could not be criminally prosecuted because they fall outside the state’s Statute of Limitations. But another allegation, that Tony committed perjury when he lied while seeking a new driver’s license just three weeks after he was sworn in on Jan. 11, 2019, was considered “potentially viable” after FDLE recommended Tony be charged with felony perjury.

Still, the criminal case came to nothing when Anthony Kunasek, a state prosecutor in Fort Myers, dropped the matter in late January, saying it could not be proved whether Tony’s false statement – answering “no” when asked whether his driving privileges had ever been suspended in another state – was intentional. In fact, Pennsylvania had suspended Tony’s driver’s license five times. Kunasek “suggested” FDLE submit the case to the often-ineffective Florida ethics commission for review.

(Kunasek, 55, was found dead in his Lee County home on Saturday, shortly after the start of a murder trial he was prosecuting. Authorities told local news outlets that Kunasek’s death was not a homicide.)

BROWARD SHERIFF STAYS MUM

Throughout it all, Broward Sheriff Tony chose to stay silent – as is his right. According to the FDLE’s report, released in January, state agents requested an interview, but on June 28, 2021 “Tony’s attorney, Michael Moskowitz, advised that Tony declined to provide OEI [Office of Executive Investigations] Inspectors an interview.”

The focus on making a criminal case stick against Sheriff Tony, however, has forestalled other official lines of inquiry to get at the truth and provide the governor with more information.

“There are a number of avenues that could be undertaken to ferret out whether the untrue response was intentionally made by Tony,” said Fort Lauderdale criminal defense attorney Gary Kollin.

For example, the Florida Department of Highway Safety and Motor Vehicles (DHSMV) can revoke a driver’s license obtained by “fraud or misrepresentation.” As the FDLE has established that Tony’s response when asked whether his driving privileges had ever been suspended in another state was false, the department could notify Tony that unless he corrects his response his license would be revoked.

As explained by Kollin, Tony would then have the choice to admit to the falsity of his application or have his license revoked. “If revoked, the governor could consider the revocation administratively in his determination whether Tony is able to perform his duties as Broward sheriff without a driver’s license in deciding whether to suspend Tony and to terminate his position as sheriff as he did with [former sheriff] Scott Israel,” Kollin said.

OTHER INVESTIGATIVE TOOLS

A DHSMV spokesman did not respond when asked whether the department has notified Tony that his license will be revoked unless he corrects his untrue statement or say whether it has taken any action in response to the FDLE’s findings.

Further, State Attorney Amira Fox of the 20th Judicial Circuit, who assigned Kunasek to the case, could issue an investigative subpoena to confer what’s known as “use immunity” on Tony, requiring him to answer questions about his untrue statements. His responses could not be used prosecute him, but again could be considered administratively by the governor.

Law enforcement authorities have another investigative tool – a “Garrity” Statement.

When misconduct occurs, Garrity statements allow public employers like BSO to question deputies and compel their response under oath. Deputies are protected from being forced to incriminate themselves because they cannot be prosecuted criminally for what they say. Their statements, however, can be used in making administrative determinations as to whether disciplinary action is warranted.

DeSantis appointed Tony in 2019 after removing Israel for his alleged leadership failures in response to the Marjory Stoneman Douglas High School massacre in February 2018. He named Tony, however, after rushing a background check that failed to uncover Tony’s previous lies or the fact that at age 14, he’d been arrested for murder.

Florida Bulldog first reported Tony’s murder arrest in May 2020. That story touched off widespread scrutiny by the Bulldog and other media into Tony’s past as well as BSO’s expensive purchases of bleeding-control kits from Tony’s former employer.

‘WE’RE GOING TO REVIEW EVERYTHING’

Shortly after news broke about FDLE’s report on Tony’s many falsehoods and prosecutors’ decision not to prosecute, Gov. DeSantis told reporters at a press conference in Miami, “We’re going to review everything…in the coming days,” the Sun-Sentinel reported.

DeSantis’s office did not respond to an emailed request for comment. But the governor’s apparent indecision as to what action, if any, is appropriate could lead him to order the FDLE to take Tony’s Garrity statement. So far, he has not done that, according to law enforcement sources.

At the Broward Sheriff’s Office, the Internal Affairs Division is central to achieving the policy goal of securing the public’s trust in the office’s integrity.

“A foundation of trust with the community is critical to the effectiveness of any public safety organization. In order to maintain this relationship, public employees are expected to maintain high ethical and moral standards. The employee complaint and disciplinary process serves to provide transparency and honesty when reviewing the actions of employees,” says the Sheriff’s Policy Manual.

IA investigates all allegations of employee misconduct, frequently compelling deputies’ Garrity statements. Except in the case of Sheriff Tony.

Part of the reason is the inherent conflict of interest that would occur if IA investigated the sheriff. Not only does the sheriff employ the IA detectives who would examine his actions, he also ultimately decides the outcomes of IA investigations.

TONY ISN’T A BSO EMPLOYEE

More fundamentally, Tony isn’t considered a BSO employee, according to Nova Southeastern University law professor Robert Jarvis. That’s so even though Tony draws an annual sheriff’s office salary of $199,629, gets healthcare and other benefits, and drives a BSO car.

“He is a constitutional officer, and it was the intention of the people that put together the Florida Constitution that sheriffs would be superintended by the governor with the ultimate decision making by the Florida Senate,” said Jarvis. “A constitutional officer cannot lose their job unless the governor suspends them and the Senate removes them.”

The Constitution sets no time limit on the governor’s review of Tony’s case or his recommendation to the Senate. Once a matter gets to the Senate, however, a trial must be held within six months.

“We saw this with [Sen.] Rick Scott who made the decision when he was governor that he was going to leave the issue of Scott Israel to his successor because he was running for Senate and didn’t want this cause him a problem,’’ Jarvis said.

Bottom line: BSO has no policy that deals with potential disciplinary action against an errant sheriff.