Vince Tyra's employment prospects may be settled, but questions linger about the propriety of the closed sessions conducted during three

University of Louisville Board of Trustees' special meetings that yielded the final outcome described by the Courier Journal on Wednesday afternoon:

"Louisville may be searching for a new athletic director soon.

"Vince Tyra, who has been the Cardinals' AD since he picked up the interim role in 2017, had changes made to his contract as of Wednesday. The University of Louisville board of trustees agreed to waive his non-compete clause of his contract which would enable him to take the athletic director job at Florida State, which he has been linked to.

"The board also waived the 30-day notice clause Tyra had in his contract, which now allows him to leave without giving a month's notice to the Louisville board.

"The non-compete clause in Tyra's contract was a sticking point that held up talks about his contract. It stated he was not allowed to leave his position as Louisville's AD to join another program in the ACC. That changed Wednesday when Louisville's board waived the clause, allowing Tyra to take the job at Florida State.

"None of the board members were available for comment, and no interim athletic director was named after the meeting, because Tyra is still in office. There was no compensation for the university in letting Tyra out of his non-compete and 30-day notice."

The university initially defended the closed sessions as discussions of "personnel matters," under the open meetings exception for "[d]iscussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee. . . ."

Contract revision is *not* a legally recognized basis for a closed session under this open meetings exception.

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

The voluntary departure of a current employee does not implicate the reputational interests the "personnel" exception — which is expressly limited to appointment, discipline, or dismissal — is intended to protect.

At some point, the board invoked the "litigation" exception to the open meetings law as an additional basis for the closed session discussions.

That exception, authorizes closed session Kentucky's courts have observed, "discussions of proposed or pending litigation against or on behalf of the public agency."

It "covers discussions of strategy, tactics, possible settlement and other matters pertaining to the case" and — according to Kentucky's courts — "may be invoked when litigation is not currently pending but is only threatened or proposed."

https://caselaw.findlaw.com/ky-supreme-court/1607534.html

"It does not, however, apply any time the public agency has its attorney present or where the possibility of litigation is remote or unsubstantiated. The threat or proposition of litigation must be substantial to trigger the exception. There must be a direct suggestion of litigation conditioned on the occurrence or nonoccurrence of a specific event."

UofL's board gave no indication that Tyra threatened litigation against the university or that the university was threatening litigation against Tyra.

In a 1997 opinion, the Kentucky Supreme Court observed, "the exceptions to the open meetings laws are not to be used to shield the agency from unwanted or unpleasant public input, interference or scrutiny."

https://caselaw.findlaw.com/ky-supreme-court/1012466.html

Based on the scant information the university provided, it appears this "is precisely how they were used" here.

As Courier sportswriter Tim Sullivan concluded in an interview, "the university decided not to create any obstacles to Vince Tyra's departure."

Lamenting the lack of transparency associated with that decision, Sullivan might have added, "Sadly, the university did create unnecessary obstacles to the public's right to know under the open meetings law."