Case seeking text messages from Natural Resources Board member Frederick Prehn will continue after judge refuses to dismiss
Laura SchulteMADISON – A case seeking to require that Natural Resources Board member Frederick Prehn turn over text messages related to his refusal to step down from the board will move forward, a judge ruled Tuesday, dismissing an attempt by Prehn's attorney to throw the case out.
In a Feb. 21 hearing, Prehn's lawyers argued that the Natural Resources Board member wasn't a public official, because he is a volunteer and is not paid for the time he spends serving on the board. Midwest Environmental Advocates, the group that filed the suit, argued that Prehn is a public official, as the board sets policy that governs natural resources in the state.
Dane County Judge Everett Mitchell in his Tuesday decision agreed with the advocacy organization, saying that Prehn's tenure on the board "has a relationship to state natural resource policy decisions, the decision-making process, and the governor’s ability to appoint new members to the NRB."
The ruling will allow the case to proceed forward to discovery, at which point the organization hopes to gain access to the text messages, said Peg Sheaffer, the director of communications and development for MEA.
Members of the organization celebrated the decision, saying Wisconsinites have the right to transparency and accountability when it comes to decisions by the NRB that impact the state's water, air and other natural resources.
"The Natural Resources Board sets policy on a wide range of important issues, including wildlife management, PFAS water quality standards, and land acquisition, among many others," said staff attorney Rob Lee. "These important issues must be acted upon by NRB members who are acting lawfully, transparently and in the best interest of the people of Wisconsin."
Midwest Environmental Advocates filed the lawsuit in October, in a bid to obtain text messages between Prehn and other members of the board. MEA had already obtained email records as a part of its request but were told no text messages existed.
The organization disputed the DNR's claim, saying that it had obtained messages sent by Prehn as a part of records released by another public official.
According to the complaint, DNR staff said they did search for text messages but did not locate any responsive to the original records request, but in another request seeking text messages from board member Bill Smith, messages from Prehn to Smith were turned over, including one that read:
"I’ve got to decide if I’m going to stay on until the next appointee is confirmed. Evers notified me he’s not going to reappoint me I guess he thinks there’s some pretty big agenda items that I might not agree with LOL."
The group argues that the text message obtained from Smith shows that Prehn "freely communicated about his decision to stay on the NRB and thus indicates the existence of additional text messages."
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The lawsuit asks that all of Prehn's text messages pertaining to his decision to remain on the board, sent between June 29, 2020, and June 29, 2021, be turned over, as required by state law, which lists any form of electronic communication as a record.
Prehn has repeatedly refused to step down from his position on the board after Democratic Gov. Tony Evers announced a new appointee — Sandra Dee Naas — at the end of April. He continued to chair board meetings and participate in votes until January, when Greg Kazmierski was elected the new chair.
The original records request, which was submitted by the organization on June 29, resulted in a number of email communications between Prehn, lawmakers, lobbyists and others. The group argues that by not providing the texts, Prehn is preventing the public from seeing the full scope of his involvement with special interest groups.
The email records, turned over in August, showed that Prehn solicited advice from and shared information with several people since May, including Madison lobbyist Scott Meyer, U.S. Rep. Tom Tiffany and Wisconsin Senate Majority Leader Devin LeMahieu, who has refused to schedule a confirmation hearing for Naas.
Prehn corresponded about whether to vacate his seat on the board, both before the appointment of Naas and after. He also shared news coverage resulting from interviews he had done, criticizing how he was portrayed and lamenting how bad it was.
Prehn also communicated that there were several issues that he wished to vote on, so he was planning to retain his seat to do so. Among those topics were water issues — including the mitigation of PFAS, or "forever chemicals" — and Wisconsin's wolf management program.
The board made several decisions regarding the compounds in late February, declining to set standards for groundwater — which is the source of drinking water for over a million Wisconsinites. The board passed surface water standards and amended drinking water standards to 70 parts per trillion, despite guidance from health officials that the number should be much lower.
Another records request showed that lobbyists got involved in the conversation surrounding whether Prehn would relinquish his seat much earlier than previously thought, meeting with LeMahieu at the state Capitol in mid-April, weeks before the governor would even announce his new appointees to the board.
Prehn, a Wausau dentist and gun store owner, has said his decision to not step down isn't based on Naas not being qualified, but because he wants to stick around for certain votes, as evidenced in several of his emails in April and May of last year. Though Prehn is no longer the chair of the board, he still remains seated as a member.
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To remain on the board, Prehn has cited a little-known 1964 state Supreme Court decision that allows for a board member to retain their seat on the board after the term expires, until a replacement is confirmed by the Senate.
A September decision from a Dane County judge upheld that decision in a ruling dismissing a lawsuit filed by state Attorney General Josh Kaul, a Democrat, against Prehn for his decision to remain on the board.
That case has been taken up by the Wisconsin Supreme Court, and oral arguments are scheduled for 9:45 a.m. March 10.
Laura Schulte can be reached at leschulte@jrn.com and on Twitter at @SchulteLaura.