EUNICE — Longtime City Councilman Terry Bettis believes the City of Eunice and the city council violated both the U.S. Constitution and the Constitution of the State of New Mexico last year.
In a complaint filed on Sept. 10 in the U.S. District Court for the District of New Mexico, Bettis’ attorneys asked for a declaratory judgment that the defendants violated his freedom of speech rights almost a year ago.
Bettis objects to both a city ordinance approved in August 2019 and a public reprimand he received from the council on Oct. 14, 2019 for violation of that ordinance.
Called a “Code of Conduct for City Elected Officials,” the ordinance sets rules for attendance and states, “No elected official shall take to any social media platform to defame, intimidate or make false accusations against the City of Eunice or any of its current or former employees.”
The ordinance provides for a public reprimand, a $500 fine or removal from the council for a violation.
The council cited both Bettis’ attendance issue and use of social media to express opinions. Bettis explained his 40 percent attendance rate in 2019 was due to serious back injury issues. He underwent previously scheduled back surgery three days after the reprimand.
Neither Bettis nor city officials commented on the lawsuit due to ongoing litigation.
The complaint filed in court asserts the ordinance is unconstitutional under the First and Fourteenth Amendments to the United States Constitution and Article II, Section 17 of the Constitution of the State of New Mexico “because it is a content and/or viewpoint-based restriction on speech that is not narrowly tailored to further any compelling government interest.”
The 2019 decision to reprimand Bettis came in a split vote of 4-2, with two members of the council missing the meeting, including Bet-tis and Steve Almager, who is no longer a member of the council. Almager had an occupational travel excuse for his absence.
A 16-year veteran of the city council, meaning he’s been elected and re-elected four times, Bettis said after the reprimand vote he was disappointed the council chose this route to “encourage” him to attend meetings in spite of his medical issues.
He had maintained throughout the process he doubted the legality of the ordinance. City Attorney Tommy Parker had told the council similar ordinances in other cities had so far avoided being tested in court.
“The Ordinance is also unconstitutional as applied to Plaintiff Terry Bettis, a longstanding member of Eunice’s City Council, because he was publicly reprimanded for engaging in constitutionally protected speech on his social media account,” the complaint states. “Specifically, on Oct. 14, 2019, the City Council publicly reprimanded Councilor Bettis for posting comments that were purportedly critical of the City and its employees on Facebook.”
In a section titled “The Effect of the Ordinance on Councilor Bettis,” the complaint filed in court notes the councilor’s longtime residency in Eunice and his service since 2004 with “stellar” attendance until 2019.
“In 2019, however, Councilor Bettis experienced serious and debilitating back pain that affected his ability to attend and participate at Council meetings,” the document states. “
Noting Bettis informed city officials and the council of his medical condition and provided them with medical documentation in support, the complaint continued, “Nevertheless, Defendants enacted the Ordinance to specifically address Councilor Bettis’ attendance issues and to prohibit and chill him from publicly defending himself by including a provision making it unlawful to criticize Defendants and their employees through social media.”
The complaint specified the social media restriction was directed at Councilor Bettis’ use of a Facebook account to express opinions about the city and the actions of some of its employees.
Bettis’ attorneys asked the court to declare the ordinance in violation of both the U.S. and New Mexico constitutions, to prohibit the city from enforcing the ordinance and to award Bet-tis costs and attorneys’ fees and “such other and further relief that this Court deems just and proper.”
Bettis’ current term on the city council goes through 2021.