BOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSAS v. UMBEHR (USSC 1996) Docket 94-1654 -- Decided June 28, 1996

Syllabus

During the term of his at-will contract with Wabaunsee County,

Kansas (County), to haul trash, respondent Umbehr was an

outspoken critic of petitioner Board of County Commissioners

(Board). After the commissioners voted to terminate (or prevent

the automatic renewal of) the contract, allegedly because they

took Umbehr's criticism badly, he brought this suit against two

of them under 42 U.S.C. 1983. The District Court granted them

summary judgment, but the Tenth Circuit reversed in relevant

part and remanded, holding that the First Amendment protects

independent contractors from governmental retaliation against

their speech, and that the extent of that protection must be

determined by weighing the government's interests as contractor

against the free speech interests at stake in accordance with

the balancing test applied in the government employment context

under Pickering v. Board of Ed. of Township High School Dist.

205, Will Cty., 391 U.S. 563, 568.

Held:

The First Amendment protects independent contractors from the

termination or prevention of automatic renewal of at-will

government contracts in retaliation for their exercise of the

freedom of speech, and the Pickering balancing test, adjusted to

weigh the government's interests as contractor rather than as

employer, determines the extent of that protection. Pp. 4-17.

(a) Because of the obvious similarities between government

employees and government contractors with respect to this issue,

the Court is guided by its government employment precedents.

Among other things, those precedents have recognized that

government workers are constitutionally protected from dismissal

for publicly or privately criticizing their employer's policies,

see, e.g., Perry v. Sindermann, 408 U.S. 593, but have also

acknowledged that the First Amendment does not guarantee

absolute freedom of speech, see, e.g., Connick v. Myers, 461

U.S. 138, 146, and have required a fact-sensitive and

deferential weighing of the government employer's legitimate

interests against its employees' First Amendment rights, see,

e.g., Pickering, supra, at 568. The parties' attempts to

differentiate between independent contractors and government

employees are unavailing. Each of their arguments for and

against the imposition of liability has some force, but all of

them can be accommodated by applying the existing government

employee framework. Moreover, application of the nuanced

Pickering approach is superior to a brightline rule giving the

government carte blanche to terminate independent contractors

for exercising their speech rights. Although both the

individual's and the government's interests are typically-though

not always-somewhat less strong in an independent contractor

case, the fact that such contractors are similar in most

relevant respects to government employees compels the conclusion

that the same form of balancing analysis should apply to each.

Pp. 4-12.

(b) Neither the dissent's fears of excessive litigation, nor its

assertion that the allocation of government contracts on the

basis of political bias is a longstanding tradition, can deprive

independent contractors of protection. Its own description of

"lowest-responsible bidder" requirements in a wide range of

government contracting laws voluntarily adopted by federal and

state authorities suggests that government contracting norms

incompatible with political bias have proliferated without

unduly burdening the government, and such laws have a long

history. Pp. 12-16.

(c) Because the courts below assumed that Umbehr's termination

(or nonrenewal) was in retaliation for his protected speech

activities, and did not pass on the balance between the

government's interests and his free speech interests, the

conclusion that independent contractors do enjoy some First

Amendment protection requires affirmance of the Tenth Circuit's

decision to remand the case. To prevail, Umbehr must show

initially that the termination of his contract was motivated by

his speech on a matter of public concern, see Connick, supra, at

146; he must therefore prove more than the mere fact that he

criticized the Board members before he was terminated. If he can

do so, the Board will have a valid defense if it can show, by a

preponderance of the evidence, that, in light of their

knowledge, perceptions, and policies at the time of the

termination, the Board members would have terminated the

contract regardless of his speech. See Mt. Healthy City Bd. of

Ed. v. Doyle, 429 U.S. 274, 287. The Board will also prevail if

it can demonstrate that the County's legitimate interests as

contractor, deferentially viewed, outweigh the free speech

interests at stake. See, e.g., Pickering, supra, at 568. And, if

Umbehr prevails, evidence that the Board members discovered

facts after termination that would have led to a later

termination anyway, and evidence of mitigation of his loss by

means of subsequent trash hauling contracts with cities in the

County, would be relevant in assessing the appropriate remedy.

Because Umbehr's suit concerns the termination or nonrenewal of

a pre-existing commercial relationship with the government, this

Court need not address the possibility of suits by bidders or

applicants for new government contracts who cannot rely on such

a relationship. Pp. 16-17. 44 F.3d 876, affirmed and remanded.

O'Connor, J., delivered the opinion of the Court with respect to

Parts I, II-A, II-B-2, and III, in which Rehnquist, C. J., and

Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and

the opinion of the Court with respect to Part II-B-1, in which

Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined.

Scalia, J., filed a dissenting opinion, in which Thomas, J.,

joined.

The full text of the decision is available from the Legal Information Institute at the Cornell University School of Law.