Wabaunsee County Board of County Commissioners Kansas v. Umbehr

The Court granted certiorari in order to resolve the conflict between the trial court and the appeals court "regarding whether and to what extent independent contractors are protected by the First Amendment," noting that in a 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 prove that "the termination of his contract was motivated by his speech on a matter of public concern." Even if he did prove such motivation on the part of the board 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 petitioner and 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, his speech 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 supervision created 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 application of the Pickering test to such situations, an approach which gave due deference to the interests of both parties. And by such application, Umbehr had the right to speak on matters of public concern without fear of retaliation, just as would a government employee. Thus the lower court reached the correct decision.