Petitioner
Board of County Commissioners, Wabaunsee County, Kansas
Respondent
Keen A. Umbehr
Petitioner's Claim
Termination of his contract to perform services for the county after he criticized the conduct of county government officials violated his First Amendmentfree speech right.
Chief Lawyer for Petitioner
Donald Patterson
Chief Lawyer for Respondent
Robert A. Van Kirk
Justices for the Court
Stephen Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor(writing for the Court), William H. Rehnquist, David H. Souter, John Paul Stevens
Justices Dissenting
Antonin Scalia, Clarence Thomas
Place
Washington, D.C.
Date of Decision
28 June 1996
Decision
The Court agreed that the petitioner's rights had been violated.
Significance
First Amendment protection against retaliation for political speech extendedto independent contractors providing services to governments.
In 1981 Keen A. Umbehr entered into an agreement as an independent contractorwith Wabaunsee County, Kansas, under which he would be the exclusive haulerof trash for all cities within the county, subject to acceptance of the agreement by each city. The terms of his contract stated that the arrangement would renew automatically each year, subject to termination by either party on 60days' notice before the end of the year or renegotiation on 90 days' notice.One such renegotiation took place in 1985, and from 1985 to 1991 Keen A. Umbehr was the exclusive hauler of trash for six of the seven cities of Wabaunsee County, Kansas.
During that time Umbehr was actively critical of the conduct of the board ofcommissioners of the county. He wrote letters to and editorials in local newspapers and spoke out at meetings of the board of commissioners on various matters, including the violation of the Kansas Open Meetings Act by the board, which resulted in a consent order the board members signed. He even ran for election to the board but was defeated.
The board of commissioners terminated his trash-hauling contract with the county in 1991 by a 2-1 vote after an attempt to do so in 1990 was technically defective and thus unsuccessful. Umbehr filed suit against the members of theboard both officially and individually, alleging that by losing his contractin retaliation for his criticism of the board he was in effect punished for exercising his First Amendment right to free speech.
His claim of suffering damages due to the retaliation of board members for his criticism was not challenged by the court. Nonetheless, the court granted summary judgment to the board, also holding that the members held qualified immunity as individuals. The court stated that because of his status as in independent contractor Umbehr did not enjoy the same level of protection affordedto government employees and therefore the First Amendment did not prevent the termination of his contract at the end of its annual term. Umbehr appealedto the U.S. Court of Appeals for the Tenth District.
The court of appeals held that Umbehr's status as an independent contractor rather than an employee did not render him less deserving of First Amendment protection: "an independent contractor is protected under the First Amendmentfrom retaliatory government action, just as an employee would be." The courtfurther stated that past analyses claiming that an independent contractor had"less at stake" and was less dependent on the government for employment thanan employee were not backed up by empirical evidence. Thus the court declared that the "balancing test" devised in Pickering v. Board of Education, (1968) in which the firing of a teacher for his criticism of the local school board (his employer) was held to be a First Amendment violation, was applicable in this case. In Pickering the Court held that government
The court of appeals reversed the holding of the lower court, remanding the case for further proceedings in which it would be determined whether the termination of the contract was in fact retaliatory. The board appealed to the U.S. Supreme Court, which granted certiorari.
The Court's Decision
The Court granted certiorari in order to resolve the conflict betweenthe trial court and the appeals court "regarding whether and to what extent independent contractors are protected by the First Amendment," noting that ina number of cases federal courts had delivered conflicting opinions on this issue. The majority agreed with the opinion of the appeals court, however, both in holding that independent contractors are protected under the First Amendment and that the Pickering test was applicable in Umbehr's case. The case was again remanded for further proceedings in which Umbehr would have to provethat "the termination of his contract was motivated by his speech on a matterof public concern." Even if he did prove such motivation on the part of theboard members, however, proof by the board members that they "would have terminated the contract regardless of his speech" would be a sufficient defense against his claim.
In analyzing the claims of the parties, the Court noted that both petitionerand respondent claimed that there was a distinction between independent contractors and employees. Both agreed that independent contractors work at a "greater remove from government officials than do government employees," performing their work without direct day-to-day supervision, but they drew opposite conclusions from this fact. Umbehr argued that because he worked on his own, his speech could have no effect on the efficient operation of the government workplace. He further claimed that since he was an independent contractor, hisspeech would not be confused with that of a government official by the public. The board, on the other hand, claimed that such lack of direct supervisioncreated the need for a government to contract with someone it trusted.
The majority, while stating that both claims were in fact reasonable and entitled to due consideration, nonetheless held that a "brightline rule" distinguishing independent contractors from employees "would leave First Amendment rights unduly dependent" on whether state law labels a government service provider's contract as a contract of employment or a contract for services. The majority also noted that "such formal distinctions . . . can be manipulated largely at the will of the government agencies concerned . . . " An approach more considerate of the vital First Amendment issue at stake was the applicationof the Pickering test to such situations, an approach which gave due deference to the interests of both parties. And by such application, Umbehr had theright to speak on matters of public concern without fear of retaliation, justas would a government employee. Thus the lower court reached the correct decision.
Justices Scalia and Thomas Dissent
Justice Scalia, joined by Thomas, delivered a dissent that by its very firstsentence clearly revealed his frustration with the majority decision: " . . .this Court's Constitution-making process can be called `reasoned adjudication' only in the most formalistic sense." Later in his opinion he was even morecritical: "The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize."
To Scalia, there was no basis in affording Umbehr the protection the majoritygranted him; however undesirable, political patronage was "an American political tradition as old as the Republic," and "such traditions are the stuff out of which the Court's principles are to be formed." The public, through itsrepresentatives in government, has regulated the granting of government contracts in many and various ways, and should it see fit, it could further regulate. The Constitution, however, does not expressly proscribe such activity asoccurred in the case at hand, and therefore it cannot be used to prevent it.Scalia also rejected the majority's refusal to distinguish between independent contractors and government employees, holding that independent contractorswere less vulnerable than government employees, and lack of clear distinctions between the two would likely lead to excessive litigation.
Impact
The Court's decision in Umbehr extended the First Amendment protectionenjoyed by government employees to independent contractors providing services to state and local governments. In addition to increased use of independentcontractors by government, today's changed economic climate has caused manypeople to lose their jobs due to "downsizing" and become self-employed, at least in the strictly legal sense, by necessity rather than choice In a Kansas Law Review article, Brian Jacobs proposed extension of this protectionto these contingent workers as well, who often perform the same jobs in thesame environment as they did when employees. It is likely that Umbehrwill be cited in cases involving dismissals of self-employed independent contractors of this type.
Related Cases
Board of County Commissioners, Wabaunsee County, Kansas
Respondent
Keen A. Umbehr
Petitioner's Claim
Termination of his contract to perform services for the county after he criticized the conduct of county government officials violated his First Amendmentfree speech right.
Chief Lawyer for Petitioner
Donald Patterson
Chief Lawyer for Respondent
Robert A. Van Kirk
Justices for the Court
Stephen Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor(writing for the Court), William H. Rehnquist, David H. Souter, John Paul Stevens
Justices Dissenting
Antonin Scalia, Clarence Thomas
Place
Washington, D.C.
Date of Decision
28 June 1996
Decision
The Court agreed that the petitioner's rights had been violated.
Significance
First Amendment protection against retaliation for political speech extendedto independent contractors providing services to governments.
In 1981 Keen A. Umbehr entered into an agreement as an independent contractorwith Wabaunsee County, Kansas, under which he would be the exclusive haulerof trash for all cities within the county, subject to acceptance of the agreement by each city. The terms of his contract stated that the arrangement would renew automatically each year, subject to termination by either party on 60days' notice before the end of the year or renegotiation on 90 days' notice.One such renegotiation took place in 1985, and from 1985 to 1991 Keen A. Umbehr was the exclusive hauler of trash for six of the seven cities of Wabaunsee County, Kansas.
During that time Umbehr was actively critical of the conduct of the board ofcommissioners of the county. He wrote letters to and editorials in local newspapers and spoke out at meetings of the board of commissioners on various matters, including the violation of the Kansas Open Meetings Act by the board, which resulted in a consent order the board members signed. He even ran for election to the board but was defeated.
The board of commissioners terminated his trash-hauling contract with the county in 1991 by a 2-1 vote after an attempt to do so in 1990 was technically defective and thus unsuccessful. Umbehr filed suit against the members of theboard both officially and individually, alleging that by losing his contractin retaliation for his criticism of the board he was in effect punished for exercising his First Amendment right to free speech.
His claim of suffering damages due to the retaliation of board members for his criticism was not challenged by the court. Nonetheless, the court granted summary judgment to the board, also holding that the members held qualified immunity as individuals. The court stated that because of his status as in independent contractor Umbehr did not enjoy the same level of protection affordedto government employees and therefore the First Amendment did not prevent the termination of his contract at the end of its annual term. Umbehr appealedto the U.S. Court of Appeals for the Tenth District.
The court of appeals held that Umbehr's status as an independent contractor rather than an employee did not render him less deserving of First Amendment protection: "an independent contractor is protected under the First Amendmentfrom retaliatory government action, just as an employee would be." The courtfurther stated that past analyses claiming that an independent contractor had"less at stake" and was less dependent on the government for employment thanan employee were not backed up by empirical evidence. Thus the court declared that the "balancing test" devised in Pickering v. Board of Education, (1968) in which the firing of a teacher for his criticism of the local school board (his employer) was held to be a First Amendment violation, was applicable in this case. In Pickering the Court held that government
has interests as an employer in regulating the speech of its employees. . . The problem in any case is to arrive at a balance between the interestsof the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer . . . [Because] free and open debate is vital to informed decision-making by the electorate . . . [one's] exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.
The court of appeals reversed the holding of the lower court, remanding the case for further proceedings in which it would be determined whether the termination of the contract was in fact retaliatory. The board appealed to the U.S. Supreme Court, which granted certiorari.
The Court's Decision
The Court granted certiorari in order to resolve the conflict betweenthe trial court and the appeals court "regarding whether and to what extent independent contractors are protected by the First Amendment," noting that ina number of cases federal courts had delivered conflicting opinions on this issue. The majority agreed with the opinion of the appeals court, however, both in holding that independent contractors are protected under the First Amendment and that the Pickering test was applicable in Umbehr's case. The case was again remanded for further proceedings in which Umbehr would have to provethat "the termination of his contract was motivated by his speech on a matterof public concern." Even if he did prove such motivation on the part of theboard members, however, proof by the board members that they "would have terminated the contract regardless of his speech" would be a sufficient defense against his claim.
In analyzing the claims of the parties, the Court noted that both petitionerand respondent claimed that there was a distinction between independent contractors and employees. Both agreed that independent contractors work at a "greater remove from government officials than do government employees," performing their work without direct day-to-day supervision, but they drew opposite conclusions from this fact. Umbehr argued that because he worked on his own, his speech could have no effect on the efficient operation of the government workplace. He further claimed that since he was an independent contractor, hisspeech would not be confused with that of a government official by the public. The board, on the other hand, claimed that such lack of direct supervisioncreated the need for a government to contract with someone it trusted.
The majority, while stating that both claims were in fact reasonable and entitled to due consideration, nonetheless held that a "brightline rule" distinguishing independent contractors from employees "would leave First Amendment rights unduly dependent" on whether state law labels a government service provider's contract as a contract of employment or a contract for services. The majority also noted that "such formal distinctions . . . can be manipulated largely at the will of the government agencies concerned . . . " An approach more considerate of the vital First Amendment issue at stake was the applicationof the Pickering test to such situations, an approach which gave due deference to the interests of both parties. And by such application, Umbehr had theright to speak on matters of public concern without fear of retaliation, justas would a government employee. Thus the lower court reached the correct decision.
Justices Scalia and Thomas Dissent
Justice Scalia, joined by Thomas, delivered a dissent that by its very firstsentence clearly revealed his frustration with the majority decision: " . . .this Court's Constitution-making process can be called `reasoned adjudication' only in the most formalistic sense." Later in his opinion he was even morecritical: "The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize."
To Scalia, there was no basis in affording Umbehr the protection the majoritygranted him; however undesirable, political patronage was "an American political tradition as old as the Republic," and "such traditions are the stuff out of which the Court's principles are to be formed." The public, through itsrepresentatives in government, has regulated the granting of government contracts in many and various ways, and should it see fit, it could further regulate. The Constitution, however, does not expressly proscribe such activity asoccurred in the case at hand, and therefore it cannot be used to prevent it.Scalia also rejected the majority's refusal to distinguish between independent contractors and government employees, holding that independent contractorswere less vulnerable than government employees, and lack of clear distinctions between the two would likely lead to excessive litigation.
Impact
The Court's decision in Umbehr extended the First Amendment protectionenjoyed by government employees to independent contractors providing services to state and local governments. In addition to increased use of independentcontractors by government, today's changed economic climate has caused manypeople to lose their jobs due to "downsizing" and become self-employed, at least in the strictly legal sense, by necessity rather than choice In a Kansas Law Review article, Brian Jacobs proposed extension of this protectionto these contingent workers as well, who often perform the same jobs in thesame environment as they did when employees. It is likely that Umbehrwill be cited in cases involving dismissals of self-employed independent contractors of this type.
Related Cases
- Pickering v. Board of Education, 391 U.S. 563 (1968).
- Rutan v. Republican Party, 497 U.S. 62 (1990).
- Waters v. Churchill, 511 U.S. 661 (1994).
- O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996).
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