NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-552
SUSAN ANDERSON
vs.
COMMONWEALTH OF MASSACHUSETTS & others 1 (and a consolidated case 2).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The question in these consolidated appeals is whether under
G. L. c. 258, § 9A, the plaintiffs, Major Susan Anderson and
Colonel Richard McKeon, are entitled to indemnification from the
Commonwealth for financial losses they incurred in defending
against an order to show cause issued by the State Ethics
Commission (commission). On the parties' cross-motions for
summary judgment, a Superior Court judge ruled in favor of the
defendants, and the plaintiffs each appealed. We conclude that
the plain and unambiguous language of § 9A does not apply to
1The Executive Office of Public Safety and the Department of State Police.
2 Richard McKeon vs. Commonwealth of Massachusetts. losses sustained in connection with proceedings before the
commission and thus affirm.
Background. The essential facts are undisputed. On
October 16, 2017, a State Police trooper arrested the daughter
of a judge. Three days later, McKeon, a State Police colonel,
issued an order through the chain of command to Anderson, a
State Police major, 3 requiring her to meet with the trooper for
the purpose of redacting certain statements from the arrest
report. Major Anderson complied with the order and provided the
trooper with the information he was to redact.
In November 2017 the trooper sued Major Anderson and
Colonel McKeon in Federal court for alleged civil rights
violations. Pursuant to § 9A, Major Anderson and Colonel McKeon
requested indemnification from the Commonwealth for their legal
fees and costs related to the trooper's lawsuit, and those
requests were approved. 4 In July 2018 a Federal judge dismissed
the trooper's civil rights claims with prejudice.
3 Both plaintiffs have since retired from the State Police.
4 The letters approving the requests noted that representation by the Attorney General's Office was not available because of a conflict of interest. The conflict arose because the Attorney General's Office was conducting an investigation into the actions of Major Anderson and Colonel McKeon. Following that investigation, in April 2018, the Attorney General's Office concluded that there were no grounds for criminal prosecution, but that there was sufficient evidence to warrant further investigation by the commission into potential ethics violations.
2 In June 2020, based on the same set of events, the
commission issued an order to show cause against Major Anderson
and Colonel McKeon, alleging that they abused their official
positions in violation of the standards of conduct set out in
G. L. c. 268A, § 23. In October 2022, after an adjudicatory
hearing, the commission issued a final decision and order
finding that there was insufficient evidence to prove the
alleged violations. Major Anderson and Colonel McKeon sought
indemnification under § 9A for the legal fees and costs they
incurred during the commission proceeding, but this time their
requests were denied. This lawsuit followed.
Discussion. As with all questions of statutory
interpretation, we begin with the language of the statute.
"Ordinarily, where the language of a statute is plain and
unambiguous, it is conclusive as to legislative intent."
Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008). We do
not construe a provision in isolation, but "look to the
statutory scheme as a whole, . . . so as to produce an internal
consistency within the statute" (quotations and citations
omitted). Plymouth Retirement Bd. v. Contributory Retirement
Appeal Bd., 483 Mass. 600, 605 (2019).
We understand Major Anderson's appellate brief to be
raising two arguments: that the Commonwealth should have
defended her in the commission proceeding under a reservation of
3 rights and litigated the issue of indemnification later; and
that the Commonwealth had a duty to indemnify her for the legal
fees and costs she incurred in connection with the commission
proceeding. 5 Neither argument persuades us.
Major Anderson's claim that the Commonwealth had a duty to
defend under a reservation of rights fails on multiple levels. 6
At the threshold there is no evidence in the record that Major
Anderson ever asked the Commonwealth to assume control of her
defense, as opposed to reimbursing her for counsel of her
choice. Moreover, even had Major Anderson made such a request,
the Commonwealth would have had no duty to defend. In arguing
otherwise, Major Anderson does not mention, let alone grapple
with, the relevant statutory language. The first paragraph of
§ 9A governs the Commonwealth's duty to defend and provides in
relevant part:
"If, in the event a suit is commenced against a member of the state police . . ., by reason of a claim for damages resulting from an alleged intentional tort or by reason of an alleged act or failure to act which constitutes a violation of the civil rights of any person under federal or state law, the commonwealth, at the request of the
5 Colonel McKeon, who is proceeding unrepresented on appeal, joined Major Anderson's brief, as he was entitled to do. Our analysis applies equally to him.
6 The defendants contend that Major Anderson waived this claim by failing to raise it to the judge. Although Major Anderson's summary judgment opposition raises the issue of reservation of rights only obliquely, and the judge did not separately address it, we will treat the issue as preserved.
4 affected police officer, shall provide for the legal representation of said police officer."
G. L. c. 258, § 9A, first par. This provision does not apply
here because the commission proceeding was commenced by the
order to show cause alleging ethical violations, not "by reason
of a claim for damages resulting from an alleged intentional
tort or by reason of an alleged act or failure to act which
constitutes a violation of the civil rights of any person under
federal or state law." Id.
Contrary to Major Anderson's suggestion, Maimaron v.
Commonwealth, 449 Mass. 167 (2007), and Pinshaw v. Metropolitan
Dist. Comm'n, 402 Mass. 687 (1988), do not impose on the
Commonwealth a free-floating duty to defend that is divorced
from the language of the statute. As the court stated in
Maimaron, supra at 173, the Commonwealth's duty to defend under
§ 9A "arises when (1) a request for legal representation is made
by the affected police officer; and (2) a lawsuit is brought
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-552
SUSAN ANDERSON
vs.
COMMONWEALTH OF MASSACHUSETTS & others 1 (and a consolidated case 2).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The question in these consolidated appeals is whether under
G. L. c. 258, § 9A, the plaintiffs, Major Susan Anderson and
Colonel Richard McKeon, are entitled to indemnification from the
Commonwealth for financial losses they incurred in defending
against an order to show cause issued by the State Ethics
Commission (commission). On the parties' cross-motions for
summary judgment, a Superior Court judge ruled in favor of the
defendants, and the plaintiffs each appealed. We conclude that
the plain and unambiguous language of § 9A does not apply to
1The Executive Office of Public Safety and the Department of State Police.
2 Richard McKeon vs. Commonwealth of Massachusetts. losses sustained in connection with proceedings before the
commission and thus affirm.
Background. The essential facts are undisputed. On
October 16, 2017, a State Police trooper arrested the daughter
of a judge. Three days later, McKeon, a State Police colonel,
issued an order through the chain of command to Anderson, a
State Police major, 3 requiring her to meet with the trooper for
the purpose of redacting certain statements from the arrest
report. Major Anderson complied with the order and provided the
trooper with the information he was to redact.
In November 2017 the trooper sued Major Anderson and
Colonel McKeon in Federal court for alleged civil rights
violations. Pursuant to § 9A, Major Anderson and Colonel McKeon
requested indemnification from the Commonwealth for their legal
fees and costs related to the trooper's lawsuit, and those
requests were approved. 4 In July 2018 a Federal judge dismissed
the trooper's civil rights claims with prejudice.
3 Both plaintiffs have since retired from the State Police.
4 The letters approving the requests noted that representation by the Attorney General's Office was not available because of a conflict of interest. The conflict arose because the Attorney General's Office was conducting an investigation into the actions of Major Anderson and Colonel McKeon. Following that investigation, in April 2018, the Attorney General's Office concluded that there were no grounds for criminal prosecution, but that there was sufficient evidence to warrant further investigation by the commission into potential ethics violations.
2 In June 2020, based on the same set of events, the
commission issued an order to show cause against Major Anderson
and Colonel McKeon, alleging that they abused their official
positions in violation of the standards of conduct set out in
G. L. c. 268A, § 23. In October 2022, after an adjudicatory
hearing, the commission issued a final decision and order
finding that there was insufficient evidence to prove the
alleged violations. Major Anderson and Colonel McKeon sought
indemnification under § 9A for the legal fees and costs they
incurred during the commission proceeding, but this time their
requests were denied. This lawsuit followed.
Discussion. As with all questions of statutory
interpretation, we begin with the language of the statute.
"Ordinarily, where the language of a statute is plain and
unambiguous, it is conclusive as to legislative intent."
Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008). We do
not construe a provision in isolation, but "look to the
statutory scheme as a whole, . . . so as to produce an internal
consistency within the statute" (quotations and citations
omitted). Plymouth Retirement Bd. v. Contributory Retirement
Appeal Bd., 483 Mass. 600, 605 (2019).
We understand Major Anderson's appellate brief to be
raising two arguments: that the Commonwealth should have
defended her in the commission proceeding under a reservation of
3 rights and litigated the issue of indemnification later; and
that the Commonwealth had a duty to indemnify her for the legal
fees and costs she incurred in connection with the commission
proceeding. 5 Neither argument persuades us.
Major Anderson's claim that the Commonwealth had a duty to
defend under a reservation of rights fails on multiple levels. 6
At the threshold there is no evidence in the record that Major
Anderson ever asked the Commonwealth to assume control of her
defense, as opposed to reimbursing her for counsel of her
choice. Moreover, even had Major Anderson made such a request,
the Commonwealth would have had no duty to defend. In arguing
otherwise, Major Anderson does not mention, let alone grapple
with, the relevant statutory language. The first paragraph of
§ 9A governs the Commonwealth's duty to defend and provides in
relevant part:
"If, in the event a suit is commenced against a member of the state police . . ., by reason of a claim for damages resulting from an alleged intentional tort or by reason of an alleged act or failure to act which constitutes a violation of the civil rights of any person under federal or state law, the commonwealth, at the request of the
5 Colonel McKeon, who is proceeding unrepresented on appeal, joined Major Anderson's brief, as he was entitled to do. Our analysis applies equally to him.
6 The defendants contend that Major Anderson waived this claim by failing to raise it to the judge. Although Major Anderson's summary judgment opposition raises the issue of reservation of rights only obliquely, and the judge did not separately address it, we will treat the issue as preserved.
4 affected police officer, shall provide for the legal representation of said police officer."
G. L. c. 258, § 9A, first par. This provision does not apply
here because the commission proceeding was commenced by the
order to show cause alleging ethical violations, not "by reason
of a claim for damages resulting from an alleged intentional
tort or by reason of an alleged act or failure to act which
constitutes a violation of the civil rights of any person under
federal or state law." Id.
Contrary to Major Anderson's suggestion, Maimaron v.
Commonwealth, 449 Mass. 167 (2007), and Pinshaw v. Metropolitan
Dist. Comm'n, 402 Mass. 687 (1988), do not impose on the
Commonwealth a free-floating duty to defend that is divorced
from the language of the statute. As the court stated in
Maimaron, supra at 173, the Commonwealth's duty to defend under
§ 9A "arises when (1) a request for legal representation is made
by the affected police officer; and (2) a lawsuit is brought
against the officer alleging an intentional tort or a violation
of civil rights." In both Maimaron and Pinshaw, the underlying
lawsuits alleged intentional torts and civil rights violations,
triggering the Commonwealth's duty to defend. See Maimaron,
supra at 168; Pinshaw, supra at 690. It was in this context
that the court noted in Maimaron, supra at 182, that the
Commonwealth should have assumed the defense under a reservation
5 of rights and litigated the issue of indemnification later.
Conversely, here, where the plain language of the statute does
not extend to an ethics proceeding before the commission, the
Commonwealth was under no obligation to defend, with or without
a reservation of rights.
We turn to the issue of indemnification. The
Commonwealth's duty to indemnify is governed by the second
paragraph of § 9A which provides in relevant part:
"The commonwealth shall indemnify members of the state police . . . from all personal financial loss and expenses, including but not limited to legal fees and costs, if any, in an amount not to exceed one million dollars arising out of any claim, action, award, compromise, settlement or judgment resulting from any alleged intentional tort or by reason of an alleged act or failure to act which constitutes a violation of the civil rights of any person under federal or state law . . . ."
G. L. c. 258, § 9A, second par. This provision likewise does
not apply here. Even assuming that the commission proceeding
qualifies as an "action" as Major Anderson argues, she
disregards the language that follows. To trigger the
Commonwealth's duty to indemnify, the "action" must have
"result[ed] from any alleged intentional tort or by reason of an
alleged act or failure to act which constitutes a violation of
the civil rights of any person under federal or state law." Id.
Again, the commission proceeding resulted not from an alleged
intentional tort or civil rights violation, but from the order
to show cause alleging ethical violations. Thus, under the
6 statute's unambiguous language, the Commonwealth had no
obligation to indemnify Major Anderson for her losses. See
Pinshaw, 402 Mass. at 692 ("Section 9A deals expressly with
intentional torts and civil rights violations").
The language of the first paragraph of § 9A reinforces our
conclusion. As mentioned, the first paragraph entitles officers
to a defense only with respect to "suit[s] . . . commenced . . .
by reason of a claim for damages resulting from an alleged
intentional tort or by reason of an alleged . . . civil rights
[violation]." G. L. c. 258, § 9A, first par. Major Anderson
raises no argument that the commission proceeding qualifies as a
"suit" within the meaning of the first paragraph (which it
plainly does not), yet would have us read the second paragraph
to impose on the Commonwealth a duty to indemnify her losses
from the same proceeding. We agree with the defendants,
however, that there is no discernible reason why the scope of
the Commonwealth's duty to indemnify should be broader than its
duty to defend, and we decline to construe the statute in this
manner. See Boston Police Patrolmen's Ass'n v. Police Dep't of
Boston, 446 Mass. 46, 50 (2006), quoting Atlas Distrib. Co. v.
Alcoholic Beverages Control Comm'n, 354 Mass. 408, 414 (1968)
(statute must be interpreted "in harmony with common sense and
sound reason"); School Comm. of Newton v. Newton Sch. Custodians
7 Ass'n, Local 454, 438 Mass. 739, 751 (2003) ("we construe
statutes to harmonize and not to undercut each other").
Finally, our reading is consistent with the Legislature's
purpose in enacting § 9A. See Filippone v. Mayor of Newton, 392
Mass. 622, 628 (1984) ("Provisions for indemnity should be
construed in a manner which will effectuate their purpose"). As
the court explained in Pinshaw, 402 Mass. at 696, the intent
behind § 9A was to "encourage[] police service" by indemnifying
officers against claims of "intentional torts and civil rights
violations," as such claims "arise frequently in the scope of
police work." The statute says nothing about charges of ethical
violations, and we will "not read into the statute a provision
which the Legislature did not see fit to put there."
8 Commissioner of Correction v. Superior Court Dep't of the Trial
Court for the County of Worcester, 446 Mass. 123, 126 (2006).
See Triplett v. Town of Oxford, 439 Mass. 720, 728 (2003).
Judgments affirmed.
By the Court (Blake, C.J., Shin & Walsh, JJ. 7),
Clerk
Entered: June 4, 2025.
7 The panelists are listed in order of seniority.