Wabaunsee County Board of County Commissioners Kansas v. Umbehr

First Amendment protection against retaliation for political speech extended to independent contractors providing services to governments.

In 1981 Keen A. Umbehr entered into an agreement as an independent contractor with Wabaunsee County, Kansas, under which he would be the exclusive hauler of 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 60 days' 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 of commissioners 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 the board both officially and individually, alleging that by losing his contract in 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 afforded to government employees and therefore the First Amendment did not prevent the termination of his contract at the end of its annual term. Umbehr appealed to 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 Amendment from retaliatory government action, just as an employee would be." The court further stated that past analyses claiming that an independent contractor had "less at stake" and was less dependent on the government for employment than an 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 interests of 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.