Subject: re: Malkan v Mutua - update for faculty Date: Wed, 12 Mar 2014 10:35:52 -0400 Dear Colleagues,

I'm copying the junior faculty on this message because I believe the consequences of Makau Mutua's criminal misconduct and the faculty's inability to restrain him will provide a serious challenge for the law school to overcome in the next few years. I also understand that he thinks he has the authority to fire junior faculty members as if they were employees at will -- his will. If anyone believes that I have misrepresented any of the facts recited below, I welcome your comments or corrections: 1. On August 28, 2008, Dean Makau W. Mutua sent me a twelve-month notice of non-renewal, claiming that my instructional position in the law school had been eliminated when the "LRW" program was replaced by the "LAWR" program. This, according to him, satisfied the "good cause" requirement for termination of a clinical professor. In fact, both LRW and LAWR are synonyms for "legal writing program" and the law school now employs a legal writing faculty of nine full-time teachers. 2. He refused to allow the tenured faculty to vote on the termination of my faculty appointment throughout the 2008-09 academic year, as required by the faculty bylaws, because he claimed that I was "out of category" and an "imposter," even though the faculty had voted unanimously to appoint me to the rank of clinical associate professor in May 2000 and six years later the P&T Committee recommended my promotion to full clinical professor. My subsequent letter of appointment from then-President Simpson conferred the title/rank of clinical professor. 3. Dean Mutua is basing his legal defense on the claim that my contract was illegal and "ultra vires" because the Policies of the SUNY Board of Trustees do not allow the law school dean to award presumptively renewable long-term contracts. He reported, however, exactly the opposite to the ABA Section on Legal Education in April 2009 -- that the law school does offer

presumptively renewable long-term contracts to clinical professors in accord with ABA Standard 405(c). 4. Throughout spring 2009, he obstructed the Grievance Committee in a successful effort to prevent the faculty from hearing my appeal of his violation of my right to pre-deprivation due process through the faculty review process. 5. Dean Mutua leveraged the credibility of his office into a miscarriage of justice -- a further deprivation of my right to due process -- by committing perjury at a hearing of the Public Employment Relations Board (PERB) on March 31 and April 1, 2010. He claimed that the P&T Committee on April 28, 2006 did not vote on my reappointment and promotion, but instead recommended that I be granted a one-year terminal administrative contract. This was a deliberate lie. Three years later, on December 19, 2013, he committed perjury again by repeating exactly the same lie at a sworn deposition in federal court. Professors Olsen, Mangold, Avery, French, and Steinfeld all testified to the contrary and provided documentary evidence of the vote count. In writing, Professors Markus Dubber and Shubha Ghosh (now in Toronto and Wisconsin) affirmed the same. The only faculty member Dean Mutua offered to corroborate his false story, former President Bill Greiner, passed away in 2009. 6. Dean Mutua destroyed documents that were subpoenaed in federal court regarding my faculty appointment and put the blame for their destruction on two colleagues, Nils Olsen and Sue Mangold, accusing them of vandalizing the Deans Office personnel files to conceal their unlawful attempts to subvert the integrity of the faculty. 7. President Satish K. Tripathi, on December 5, 2013, submitted an affidavit, in lieu of sitting for a deposition, in which he swore that no one at the University's Office of Counsel or from his administrative staff ever told him about my allegations of criminal misconduct against Dean Makau W. Mutua. In fact, since November 2010, I sent or copied six registered letters to President Tripathi. In addition, two articles about my case were published in the UB Spectrum, and Judge Richard J. Arcara's denial of SUNY's motion to dismiss this case was reported on the front page of the New York Law Journal. 8. Over the past six years, the University has spent hundreds of thousands of dollars employing lawyers from the Attorney General's Office, Governor's Office of Employee Relations, SUNY

Central, UB Counsel, and Damon Morey to defend Dean Makau Mutua's corrupt and illegal practices. 9. Dean Mutua failed to appear for the mandatory ADR in federal district court on March 1, 2013. His absence was unexplained and unexcused under the Western District Rules. I had traveled with counsel 450 miles to negotiate with him. In the past six years the University has made no offer to settle or discuss any name-clearing statement that would allow me to resume my career elsewhere. 10. I will not burden you by describing how Makau Mutua's lies and slanders and Satish Tripathi's indifference and disengagement have changed my life. Each of you can imagine how your lives would be changed by such an inexplicable injustice and betrayal. I have to ask the question, however, of how it is possible that Makau Mutua is still occupying the Dean's Office. Sincerely,

Jeffrey Malkan