BD. OF COUNTY COMM'RS v. UMBEHR

Legal Principle at Issue

Whether First Amendment prevents government officials from terminating a contract with an independent contractor because of the contractor's speech.

Action

Affirmed (includes modified). Petitioning party did not receive a favorable disposition.

Facts/Syllabus

Keen Umbehr had a contract with Wabaunsee County, Kansas, under which he hauled trash for participating cities in the county. While the contract was in force, Mr. Umbehr spoke at county commission meetings and wrote letters and columns in local newspapers concerning, among other things, alleged violations of law and other improprieties by the county commission and its road and bridge department. The county later terminated the hauling contract. Mr. Umbehr filed suit against three of the commissioners, alleging that they had terminated the contract because of his public criticisms and that the termination violated his First Amendment rights. The trial court rejected Mr. Umbehr's claim, holding that the First Amendment did not prohibit the county from considering Mr. Umbehr's statements when it decided to terminate the contract. On appeal, the Tenth Circuit Court of Appeals reversed. The Court of Appeals recognized that its decision was contrary to cases in other Circuits but it held that the rationales used in the other cases were no longer valid.

The First Amendment prevents the government from terminating employees who speak on matters of public concern. Connick v. Myers, 461 U.S. 138 (1983). Governmental workers also are constitutionally protected from dismissal for supporting or affiliating with a political party, unless such affiliation reasonably can be considered an appropriate job qualification. Branti v. Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347 (1976). To prevail in an unlawful termination claim, the employee must show that the protected conduct was a substantial or motivating factor in the termination. Even upon such a showing, the government can prevail if it can show that it would have taken the same action absent the protected conduct or if sufficiently strong countervailing governmental interests exist. Mt. Healthy City Bd. of Education v. Doyle, 429 U.S. 274 (1977);Pickering v. Board of Education of Township High School Dist., 391 U.S. 563 (1968).

Importance of Case

The Court had never before addressed the First Amendment rights of independent contractors in this context. The Court resolved a split among the Circuits, as the Fifth, Eighth, and Tenth Circuit Courts of Appeal had recognized such a First Amendment right, while the Third and Seventh Circuits had rejected the right. The decision signifies increasing First Amendment rights for those who are in any way working for the government. On the same day that it decided this case, the Court decided O'Hare Truck Service v. City of Northlake, 1996 U.S. Lexis 4263, in which it held that a city government cannot punish a contractor for opposing the incumbent mayor in an election.