An environmental law center wants a court to find the embattled former chair of Wisconsin’s Natural Resources Board violated state open records law by withholding or delaying the release of text messages about his decision to stay on the board.
A Dane County judge heard oral arguments Wednesday in a lawsuit filed by Midwest Environmental Advocates, or MEA, against the board’s former chair Fred Prehn. The group sued Prehn last year to compel him to turn over records after discovering texts about his decision to remain on the board past the end of his term.
"That records request explicitly included text messages. After receiving only emails from the defendants, MEA reached back out to confirm that text communications were included in the search," said Adam Voskuil, MEA’s attorney. "Though we were told that no records existed, dozens of responsive communications were withheld."
Former Republican Gov. Scott Walker appointed Prehn to the board in 2015. His six-year term expired in May of last year. Even so, the Wausau dentist and businessman has refused calls to resign and make way for Democratic Gov. Tony Evers' appointee Sandy Naas.
Attorney Mark Maciolek argued Prehn searched for records on his phone, but didn’t find them. Maciolek also said a digital search of records yielded tens of thousands of lines of information that would take time to review, rejecting claims that Prehn intentionally denied or delayed their release.
"Rather than really being engaged and wanting to get these messages, my friends at MEA are much more focused on whatever political value they think they can get out of attacking Dr. Prehn as somehow violating laws or withholding information or being unreasonable," Maciolek said.
In response, Voskuil said the motivations behind MEA’s request are irrelevant to the case and question of whether Prehn broke the law.
Prehn has said his decision to remain on the board was not political, but texts obtained in the digital records search show he sought to maintain conservative control of the board. In a January message, Prehn said he was stepping down as chair because he couldn't run more than three years in a row.
"But (I) still remain as a board member and I will effectively guarantee a conservative gets to have the chairmanship," Prehn wrote. "Supreme court hearing is March 10. That will effectively, and hopefully allow me to remain around till the election."
As first reported by the Milwaukee Journal Sentinel, Prehn sought advice from conservative lobbyists, state senators, Walker and former Republican candidate for governor Rebecca Kleefisch. In another text, Prehn wrote, "I'll see if I can hang on till Becky gets in." The text appears to be a reference to Kleefisch, who was defeated in the August primary election by Republican Tim Michels.
Now that voters have reelected Evers to serve another four years as governor, he could appoint several board members to replace three Walker-era appointees whose terms are set to expire next May. However, the Wisconsin Supreme Court confirmed in a ruling this summer that it's legal for board members to remain in their seat until the Republican-controlled Senate confirms Evers' appointees.
Maciolek highlighted the Supreme Court's ruling, and he added Prehn willingly turned over texts with Walker that sought advice about whether it was not only legal, but right to stay on the board.
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"There's certainly no example of any messages that hint at any kind of wrongdoing, or even any kind of legal effort on the part of other conservative officials to undermine the current governor's agenda," Maciolek said.
At the same time, Voskuil noted additional records have not yet been reviewed or turned over in the case, noting 46 search terms had yet to be analyzed as of September.
"We still don't know what information or records or how much information or records is outstanding," Voskuil said.
MEA is asking the court to order Prehn to release any remaining records and find that he violated public records law. The nonprofit law center is also seeking fees and damages related to its request.
Dane County Circuit Court Judge Everett Mitchell said he would release a final decision in the case "shortly."
Texts revealed so far prompted fellow board member Marcy West, an Evers’ appointee, to call on Prehn to reconsider his decision to stay on the board in September.
"There have only been 60 people that have had the opportunity to serve on this board, and you are blocking a very qualified candidate," West said at the board's September meeting. "The politics that have been brought into this, again, it's just alarming. And it's hard to deal with every aspect of this board because of it."
Last year, Attorney General Josh Kaul filed a lawsuit in August that sought to remove Prehn from the board, which was dismissed by another Dane County judge. Kaul appealed the case to the Wisconsin Supreme Court. The court's conservative majority ruled in June that Prehn can remain on the board indefinitely.
The state’s high court found a vacancy on the board is only created when a person dies, resigns or is removed for cause. An MEA spokesperson declined to comment on whether a ruling against Prehn would provide sufficient justification for his removal.
Prehn’s decision to stay has so far ensured conservatives will continue to hold a 4-3 majority on the board that decides environmental policies, including standards recently enacted for PFAS in drinking and surface waters.
The Republican-controlled Senate has refused or delayed confirmation of Evers’ appointees, including Naas. As of September, data obtained from Wisconsin's nonpartisan Legislative Reference Bureau shows at least 150 Evers appointees have yet to be confirmed. In January, Senate Majority Leader Devin LeMahieu, R-Oostburg, told WisPolitics that the Senate would not take up remaining Evers appointments.