Mitchell Seeks New Prosecutor in Tree Cutting Case

Commissioner’s attorneys say County Attorney is violating conflict of interest rules by prosecuting tree-cutting case

By Justin Franz
Flathead County Commissioner Phil Mitchell, center, pleaded not guilty on a felony criminal mischief charge in Flathead County District Court on Aug. 31, 2017. Greg Lindstrom | Flathead Beacon

Attorneys for Flathead County Commissioner Phil Mitchell have filed a motion to disqualify the Flathead County Attorney’s Office from prosecuting their client because they believe it is a “conflict of interest.”

In the motion and brief filed on Sept. 19, attorneys Sean S. Frampton and Todd Glazier write that because County Attorney Ed Corrigan also represents Mitchell in his role as a county commissioner it is inappropriate for him to file charges against him. Mitchell was charged with felony criminal mischief after allegedly destroying six cottonwood trees at a public park in Whitefish.

“An attorney cannot sue his own client,” Frampton and Glazier stated in the motion. “Nor can an attorney represent anyone that would be adverse to another client. These are the rules for conflicts of interest and they apply to a prosecutor. The Flathead County Attorney’s prosecution of Mitchell violates these rules, adversely impacts the Board of Commissioners, and the Flathead County Attorney should be disqualified.”

In an affidavit filed by Mitchell, the commissioner states that he is now hesitant to talk with the County Attorney’s Office because they are prosecuting him.

“I speak with that office many times each week and sometimes daily,” Mitchell wrote. “Since the County Attorney’s Office has been prosecuting me, I have felt very uncomfortable speaking with that office about commissioner issues. In fact, I now hesitate to contact the County Attorney on questions that I have concerning the issues before me.”

Mitchell pleaded not guilty to felony criminal mischief in Flathead County District Court on Aug. 31. He is scheduled to stand trial next year.

According to court records, on July 11, a Flathead County Parks and Recreation Department employee found six dying or dead cottonwood trees in a half-acre county-owned park known as Lake Park Addition just south of Whitefish Lake State Park. The trees appeared to be girdled, a tactic that involves removing a thick strip of bark ringing the tree’s circumference, causing the tree to die.

The Flathead County Sheriff’s Office opened an investigation into the destruction in July and retained an arborist that determined it would cost more than $30,000 to replace the trees.

In an interview with law enforcement, Mitchell allegedly admitted to girdling the trees and pouring herbicide Roundup on at least one of them.

In late July, Mitchell issued a written apology to county staff for destroying the trees and offered to pay for their replacement. He said he destroyed the cottonwoods because they were a “substantial nuisance” that frequently drop limbs on to his adjacent property.

“I realize that because of my elected position, I may have put county officials in an awkward position. I have urged them to treat me no differently than they would treat any other citizen,” Mitchell stated. “I take complete responsibility for this wrongful act and apologize to everyone in Flathead County for my conduct. I look forward to restoring the parkland to better than ever condition.”

Mitchell, a former member of the Whitefish City Council from 2010 to 2013, was elected to the Flathead County Board of Commissioners in 2014.

The park features a floating dock, picnic tables and groves of mature trees, and it is accessed by a 60-foot-wide county easement off West Lakeshore Drive that tracks down to the lakeshore.

Mitchell has previously approached the county about acquiring the lakefront park through a land swap, offering three acres of land he owns along the Whitefish River in Evergreen for the county site.

If convicted of felony criminal mischief, he could face up to 10 years in prison or a $50,000 fine.

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