Public Employee Indemnification Under Section 9 of Massachusetts Tort Claims Act Held Strictly Discretionary: Williams v. City of Brockton, 2013 WL 254778 (D. Mass. 2013)
In a recent unpublished decision, the United States District Court for the District of Massachusetts, confirmed that public employee indemnification under M.G.L. c. 258, § 9, of the Massachusetts Tort Claims Act (“MTCA”), is not mandatory but, instead, may be decided by a public employer on a case-by-case basis. In Williams v. City of Brockton, Lon Elliot, a former Brockton police officer, sought an order directing the City to indemnify him in the same manner and to the same extent it was indemnifying other police officers named as defendants in the same suit. Elliot contended such relief was warranted under Section 9 of the MTCA which provides that a public employer “may” indemnify a public employee for financial loss and expenses arising from the defense of certain civil actions – namely, intentional torts and civil rights violations – under two conditions. First, the employee must have been acting within the scope of his official duties or employment. Second, any civil rights violation must not have resulted from the employee’s grossly negligent, willful or malicious misconduct. M.G.L. c. 258, § 9. In addition, indemnification under Section 9 cannot exceed one million ($1,000,000) dollars.
Elliot’s demand arose in the context of a civil rights action brought against him and three other former and present Brockton police officers by Ken Williams, another former officer. In his Complaint, Williams alleged that, among other things, the defendant police officers had falsely arrested a minority citizen. During that arrest, Elliot (Williams’ supervisor) allegedly made several racially-offensive remarks and refused to acknowledge evidence that 2he arrest warrant was invalid. After Williams encouraged the citizen to report his mistreatment to the Department, Elliot allegedly retaliated against him by obstructing plaintiff’s unrelated on-duty injury claim. An investigation into Elliot’s role in the arrest ultimately led to his termination from the Department for cause.
When Williams filed suit, the City agreed to defend the other officers, but refused to defend or indemnify Elliot on the grounds that his termination was for cause. Elliot acknowledged that Section 9 indemnification is discretionary, but nonetheless insisted that the City must provide a “sound justification” for its refusal to defend him while defending other officers sued under the same set of circumstances. Absent such justification, Elliot claimed, indemnification was required.
Magistrate Dein disagreed. Section 9 grants public employers the authority to indemnify employees under certain conditions, but does not require them to do so. Nor does the statute impose any obligation on public employers to treat employees equally or to provide support for a refusal to indemnify. “Even if the City’s decision may arguably appear unfair given its agreement to represent the remaining police officers in this action, the plain language of Section 9 does not support Elliot’s reading of the statute, and does not provide grounds for the requested relief.” 2013 WL 254778, *5.
If a public employer should adopt Section 13 of the MTCA, employee indemnification may indeed be compulsory under certain conditions. Likewise, a collective bargaining agreement may require indemnification against those claims specifically described in the agreement. But as a source of mandatory public employee indemnification, Section 9 of the MTCA falls far short.
Published in Developments in Municipal Law Spring 2013 Newsletter.