A dispute between a tow truck driver and a mayor that wound up in the Supreme Court last month may impact how counties handle the hiring and firing of independent contractors who exercise their First Amendment rights.
The case closely dovetails an earlier one heard by the Supreme Court this term, in November, involving a trash-hauling service in Wabaunsee County, Kan.
The Supreme Court’s opinion on these cases should be handed down no later than late June, by the end of the court’s 1995-96 term. The decision should be important to counties, given the increasing trend toward use of privatizing public-sector operations.
The Wabaunsee County dispute began in 1991, when the county terminated Keen Umbehr’s trash-hauling contract. Two years before, Umbehr had begun criticizing — in newspaper articles and at commission meetings — the county commission’s policies and the way it performed its duties.
Umbehr sued after his contract was terminated, alleging it was pulled after he exercised his First Amendment rights.
In the Illinois case, tow truck driver John Gratzianna was asked to make a campaign donation of $1,000 in 1993 to the mayor of Northlake, Ill., who was seeking reelection.
Gratzianna had begun a business as a tow truck driver more than 30 years ago; to advance his business, he often made contributions to local politicians in order to get government jobs.
But in 1993, $1,000 was more than Gratzianna wanted to pay. He ended up actively supporting the mayor’s opponent, putting up campaign posters at his business. The incumbent won reelection.
The city police department then removed Gratzianna’s business, O’Hare Truck Service, from its list of tow trucks to call when an accident is reported. Gratzianna had been on the list since 1965.
Gratzianna sued, saying the action violated his First Amendment rights.
The only “real differences” in the cases are the “types of First Amendment rights” exercised, said Barbara Fick, an associate professor of law at Notre Dame Law School in Notre Dame, Ind. Fick previewed the cases in articles written for the American Bar Association.
She said the county dispute involving the trash hauler is more about “making political statements” whereas the city dispute involving the tow truck driver is more of a “political affiliation” case. However, She said whatever opinion the Supreme Court reaches, “it should be the same in both.”
In the city case, lower courts sided with the city, ruling that an independent contractor can’t sue on those grounds, unlike regular government employees.
In the county case, lower courts sided with the trash hauler, after he appealed an earlier decision against him. The commissioners argued that government has “an unfettered discretion in dealing with independent contractors, and courts should not micromanage government operations by reviewing decisions to award or terminate contracts,” the ABA noted.
Fick, in writing about the city case, said the question is “whether political patronage in the awarding of government contracts infringes these core First Amendment rights and, if so, whether the government can justify the infringement.”
In that case, a lower court warned that if restrictions are imposed on how governments hire independent contractors, it “would invite every disappointed bidder for a public contract to bring a federal suit against the government purchaser.”
On the other hand, the ABA noted, “if independent contractors are denied protection against government retaliation prompted by First Amendment activities, an entire class of persons could be effectively silenced in the political arena.”
Either way, Fisk noted, the court’s judgment in these cases will “provide guidance to state and local governmental units about the restrictions, if any, that the First Amendment places on their decisionmaking discretion in awarding government contracts.”