Sheriff, County Attorney fighting release of Colling’s personnel records

The Peace Officer Standards and Training Commission wants to subpoena the records as part of its investigation into former ACSO Corporal Derek Colling. The investigation could end in decertification.

The Albany County Sheriff’s Office is fighting the release of personnel records that could be pertinent to the decertification of a former deputy — Derek Colling — who shot and killed an unarmed Laramie man in 2018.

A Wyoming law enforcement commission is currently considering his decertification, conducting their own investigation into his behavior surrounding the 2018 shooting, his initial hiring process and his general conduct as a peace officer.

In the course of this investigation, the commission has filed an application in Albany County District Court to subpoena Colling’s personnel records from the Sheriff’s Office.

The subpoena would read:

YOU ARE INSTRUCTED to produce a complete and legible copy of all records pertaining to the employment of Derek Colling … including but not limited to, pre-employment file, personnel file, any psychological evaluations and reports, any incident reports, any disciplinary reports and/or actions and any complaints made against Mr. Colling while he was employed with the Albany County Sheriff's Office.

The investigation might look back as far as Colling’s previous employment with the Las Vegas Police Department, where he was involved in numerous violent and lethal incidents.

According to court documents, Colling himself objects to the enforcement of this subpoena, arguing his personnel records are privileged and protected. Albany County Sheriff Aaron Appelhans, aided by County Attorney Kurt Britzius, has backed Colling in this dispute, agreeing with the argument that Colling’s personnel records are off limits to the Peace Officer Standards and Training (POST) Commission.

“The County Sheriff's employee policy and the County Employee Handbook does not contain any policy where an employee must release or waive the release of an employee's personnel file as a result of any investigation conducted by a licensure board of a peace officer for discipline,” the county’s response argues. “Further, there is no state statute or rule by this Commission authorizing such release of this information to POST without a release from the employee or Court Order.”

The sheriff’s argument cites the Wyoming Public Records Act, which exempts “medical, psychological and sociological data” from government employee personnel files.

While Colling is not currently employed by any law enforcement agency, decertification would prohibit him from ever working in Wyoming law enforcement again, and likely stop him from working in law enforcement anywhere.

The rationale for POST’s disciplinary investigation is included in court documents. POST alleges:

Since January 31, 2020, POST has received 7 complaints, 14 letters and a petition with 2,608 signatures regarding the (Robbie) Ramirez OIS (Officer Involved Shooting), and Respondent's hiring by the Albany County Sheriff's Office. These complaints and letters raise questions regarding the circumstances to the two OIS while employed with the Las Vegas Police Department in 2006 and 2009 and an on-duty assault that led to the Respondent's termination of employment with the Las Vegas Police Department in 2011. These complaints and letters raise questions regarding Respondent's use of physical force in circumstances where there was no threat, whether the force used was excessive and grossly inappropriate, and failure to document factors surrounding an arrest.

The matter of personnel records — and their alleged privilege — has underscored an ongoing debate in Laramie about the future of policing. For two years, the Laramie City Council pondered the formation of a civilian oversight board. Among the many issues raised during that debate was the issue of personnel records. Those opposed to the formation of a civilian oversight board argued such a board would be legally impossible, given that any such board of citizens would be barred from viewing personnel records.

Then-Police Chief Dale Stalder added any records involving police use-of-force would be automatically classified as personnel records — because, in theory, those records could be used as the basis for discipline or termination. City Attorney Bob Southard agreed, but Media Law Attorney Bruce Moats didn’t, and there isn’t much Wyoming case law speaking to the issue.

Colling’s certification was renewed after the 2018 shooting and is now set to expire in September of this year.

When it comes to POST’s pursuit of Colling’s personnel records, a bill brought by Albany County Rep. Karlee Provenza (HD-45) during the most recent session would have provided some clarity.

House Bill 173 would have explicitly required “personnel files of peace and corrections officers and dispatchers to be available to the peace officer standards and training commission.”

Provenza said the bill was inspired by this and other similar cases.

“We know that POST has had five requests for records denied since 2020; three they issued subpoenas for and two were formal written requests,” she said. “While clearly we have a case here in Laramie where that is an issue that people in Albany County can see … it’s not an isolated incident.”

Provenza said Wyoming’s Public Records Act was not intended to bar POST from viewing officer or deputy personnel files.

“It’s pretty obvious to everybody that the entity that certifies officers should have the opportunity and the right to see their records,” she said.

The bill was endorsed by the House Corporations Committee with a unanimous vote, but it died alongside a mountain of other bills when it failed to be considered on the House floor.

Provenza is not a party in the subpoena case between POST and the Albany County Sheriff’s Office. But she’s been watching developments closely. Before her initial 2020 election to the Wyoming House, Provenza was active in the fight for police accountability and transparency, spearheading the organization known as Albany County for Proper Policing, or ACoPP. ACoPP formed in the aftermath of the 2018 shooting.

Provenza said it’s “frustrating” to see the sheriff’s office fight the release of Colling’s personnel records.

“But the reality is I think they are covering themselves legally from potential litigation from former Corporal Colling,” she said. “He’s been under investigation for decertification since January 2020, I believe. I can’t have details for that from POST because these investigations are not public … but I can only conclude from that amount of time, and in knowing the people that work with POST, that the length of time is the direct result of obstruction, of (Colling) not wanting his personnel records to be released.”

But if personnel records are used to celebrate cops, Provenza said they should be made available to oversight agencies.

“Law enforcement gets to talk about, in personnel records, what they want,” she said. “So (former Sheriff) Dave O’Malley was able to parade around that (Colling) finished top of his class, that he’s an expert marksman, and on and on. And yet, we don’t have the right to see the rest of that file? That doesn’t make any sense.”

Others, such as Cheyenne NAACP leader Stephen Latham, have argued police personnel records should not be treated the same as other city or county employee personnel records. Because police are authorized to use force and even kill civilians in some circumstances, Latham argues they ought to be held to a higher, more transparent standard than other public servants.

In the years since the 2018 shooting, then-Sheriff O’Malley resigned. So did then-County Attorney Peggy Trent, whose handling of the case was criticized by the victim’s family, ACoPP and others in the community. (Trent denies that her early resignation was a result of this controversy.) Colling was moved to the detention center shortly after Appelhans took office and he eventually resigned. A federal civil rights lawsuit brought by the victim’s family was settled last summer for an undisclosed amount. (It’s just one of several recent federal civil rights lawsuits involving the agency.)

Albany County District Court Judge Misha Westby has set a hearing to determine the fate of POST’s subpoena for April 12.