SUSAN ANDERSON v. COMMONWEALTH OF MASSACHUSETTS & Others (And a Consolidated Case).

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.

9