518 U.S. 668 (1996), 94-1654, Board of Comm'rs, Wabaunsee County v. Umbehr

Docket Nº:Case No. 94-1654
Citation:518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843, 64 U.S.L.W. 4682
Case Date:June 28, 1996
Court:United States Supreme Court

Page 668

518 U.S. 668 (1996)

116 S.Ct. 2342, 135 L.Ed.2d 843, 64 U.S.L.W. 4682




Case No. 94-1654

United States Supreme Court

June 28, 1996

Argued November 28, 1995



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.


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. 673-686.

(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

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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 bright-line 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. 673-681.

(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. 681-685.

(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

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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. 685-686.

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, post, p. 686.

Donald Patterson argued the cause for petitioner. With him on the briefs was Steve R. Fabert.

Robert A. Van Kirk argued the cause for respondent. With him on the brief was Richard H. Seaton.

Beth S. Brinkmann argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, Cornelia T. L. Pillard, William Kanter, and Robert D. Kamenshine. [*]

Justice O'Connor delivered the opinion of the Court.[†]

This case requires us to decide whether, and to what extent, the First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for their exercise of the freedom of speech.


Under state law, Wabaunsee County, Kansas (County), is obliged to provide for the disposal of solid waste generated

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within its borders. In 1981, and, after renegotiation, in 1985, the County contracted with respondent Umbehr for him to be the exclusive hauler of trash for cities in the County at a rate specified in the contract. Each city was free to reject or, on 90 days' notice, to opt out of, the contract. By its terms, the contract between Umbehr and the County was automatically renewed annually unless either party terminated it by giving notice at least 60 days before the end of the year or a renegotiation was instituted on 90 days' notice. Pursuant to the contract, Umbehr hauled trash for six of the County's seven cities from 1985 to 1991 on an exclusive and uninterrupted basis. During the term of his contract, Umbehr was an outspoken critic of petitioner, the Board of County Commissioners of Wabaunsee County (Board), the three-member governing body of the County. Umbehr spoke at the Board's meetings, and wrote critical letters and editorials in local newspapers regarding the County's landfill user rates, the cost of obtaining official documents from the County, alleged violations by the Board of the Kansas Open Meetings Act, the County's alleged mismanagement of taxpayers' money, and other topics. His allegations of violation of the Kansas Open Meetings Act were vindicated in a consent decree signed by the Board's members. Umbehr also ran unsuccessfully for election to the Board.

The Board's members allegedly took Umbehr's criticism badly, threatening the official county newspaper with censorship for publishing his writings. In 1990, they voted, 2 to 1, to terminate (or prevent the automatic renewal of) Umbehr's contract with the County. That attempt at termination failed because of a technical defect, but in 1991, the Board succeeded in terminating Umbehr's contract, again by a 2 to 1 vote. Umbehr subsequently negotiated new contracts with five of the six cities that he had previously served.

In 1992, Umbehr brought this suit against the two majority Board members in their individual and official capacities

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under Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983, alleging that they had terminated his government contract in retaliation for his criticism of the County and the Board. The Board members moved for summary judgment. The District Court assumed that Umbehr's contract was terminated in retaliation for his speech, and that he suffered consequential damages. But it held that "the First Amendment does not prohibit [the Board] from considering [Umbehr's] expression as a factor in deciding not to continue with the trash hauling contract at the end of the contract's annual term," because, as an independent contractor, Umbehr was not entitled to the First Amendment protection afforded to public employees. Umbehr v. McClure, 840 F.Supp. 837, 839 (Kan.1993). It also held that the claims against the Board members in their individual capacities would be barred by qualified...

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