UPDATE: Faculty Senator/attorney Kurt Metzmeier suggests a scenario in which "the president went into the meeting with the full expectation that the board would accept a waiver of the non-compete, accept Tyra's resignation, and then appoint a replacement--with the appointment being the stated reason for the closed-session."

This had not occurred to us.

A discussion of the competing qualifications of the candidates for interim athletic director might be permissible under the open meetings exception for discussions that might lead to the appointment of an employee.

Of course, some of the concerns about the legality of the special meeting and closed session might have been avoided if the special meeting notice had indicated "Closed session to discuss qualifications of candidates for appointment of interim athletic director" rather than the generic "personnel matters."

Credit UofL with swift action if not strict compliance with the open meetings law.

. . . . .

From the Courier Journal's Tim Sullivan:

"Monday's special Board of Trustees meeting, conducted almost entirely in closed executive session, did nothing to clarify Tyra's fate. No formal action was taken. No details were disclosed. None of the board members could be physically cornered for cross-examination because they all participated remotely.

"So much for transparency.

"The most likely scenario would still seem to be a settlement in which U of L waives Tyra's non-compete clause in return for a modest amount of financial compensation. The nightmare scenario would be an impasse that leaves Tyra in charge where he doesn't appear to be wanted."

An earlier tweet by Sullivan — reporting that the UofL board would hold a special meeting to discuss "personnel matters" — raised several red flags.

No one seem to be certain what the topic of the meeting would actually be, given the non-specificity of the special meeting agenda item and concerns that a closed session related to Tyra's voluntary departure was illegal.

Therein lies the problem.

The open meetings law is all about "maximizing notice" to the public, and the failure to strictly adhere to the law "violates the public good."

Floyd County Board of Education v Ratliff (1997) https://caselaw.findlaw.com/ky-supreme-court/1012466.html

The open meetings exception for "personnel matters" is strictly confined to discussions or hearings that might lead to the "appointment, discipline, or dismissal" of an individual employee.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48229

Just to be 100% clear, neither a discussion of how to incentive Tyra to stay nor what UofL will do if he departs is a legally recognized basis for a closed session.

In a 2012 Kentucky Supreme Court opinion analyzing the personnel exception — and affirming the lower court's decision to void the underlying employment contract — the Court wrote:

"Under the personnel exception, a public agency may enter closed session only for 'discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student.' KRS 61.810(1)(f). These three topics are the only personnel matters a public agency may discuss in closed session. Discussions of any other matters are expressly precluded. The statute itself underscores the specific nature of the exception by explicitly stating the exception does not 'permit discussion of general personnel matters in secret.'"

Carter v Smith (2012) https://caselaw.findlaw.com/ky-supreme-court/1607534.html

A discussion aimed at incentivizing Tyra to stay at UofL or focusing on how it would respond to his departure falls outside the parameters of the exception and therefore potentially constitutes a violation of the open meetings law.

The nonspecificity of the special meeting agenda item potentially constitutes another violation.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23047

It's important to remember that such legal concerns have real consequences. Several years ago Bobby Knight fans unsuccessfully challenged Indiana University's open meetings violations — under Indiana's open meetings law equivalent— in discussions concerning his departure. The case played out over a six year period.

http://a.espncdn.com/ncb/news/2000/0929/788174.html

https://www.wthr.com/article/news/in-supreme-court-declines-to-hear-kni…

Avoidance of a similar fate —if nothing else — should be a strong inpetus to UofL's board to strictly adhere to the open meetings law and to err — if at all — in favor of openness.

It appears now that at least one stumbling block to Tyra's departure is a non-compete clause in his UofL contract that will not expire until 2024. If this was the focus of the closed session discussion, and UofL'a board anticipates potential litigation based on a desire to enforce it, the board might have more correctly invoked the open meetings litigation exception for discussions about proposed or pending litigation against or on behalf of the public agency.

If the board intends to extract its pound of flesh by imposing a monetary penalty on Tyra based on his violation of the non-compete clause — before it allows him to depart — it might float a "discussion that might lead to discipline" argument in support of a closed session under the open meetings exception for personnel matters, but this argument remains a bit of a stretch, and the open meetings exceptions are required, by law, to be strictly construed.

Under the circumstances as they are currently understood to exist, it's difficult to understand why any of the UofL board's discussions of Tyra's voluntary departure should be conducted in closed session.

To quote Tim Sullivan, "So much for transparency."