UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

JEFFREY MALKAN, )

)

Plaintiff, )

)

-against- )

) Docket No: 12-CV-0236 (RJA-HKS)

MAKAU W. MUTUA, in his individual )

capacity, )

)

Defendant. )

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PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF MOTION

FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY

LEEDS BROWN LAW, P.C.

Attorneys for Plaintiff

One Old Country Road, Suite 347

Carle Place, New York 11514

(516) 873-9550

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TABLE OF CONTENTS

PRELIMINARY STATEMENT……………………………..………….……………………….............. 2

I. PROFESSOR MALKAN HAD A FEDERALLY-PROTECTED PROPERTY

INTEREST IN HIS EMPLOYMENT BASED ON HIS CONTRACT, STATE TITLE,

ACADEMIC RANK, AND THE INSTITUTIONAL RULES THAT APPLIED TO HIS

STATUS…….................................................................................................................................... 6

A. The Contract was intended to – and did – provide “tenure-like”

protection………………………………………………….……………………………………..…6

B. Dean Mutua’s claims that Dean Olsen exceeded his authority are entirely

false…………………………..…………………………………………………………………..…7

II. PROFESSOR MALKAN WAS DENIED THE PRE-DEPRIVATION DUE PROCESS TO

WHICH HE WAS ENTITLED THROUGHOUT THE ENTIRE LAST YEAR OF HIS

CONTRACT TERM…………………………………….……………………….………………31

A. The violations of Professor Malkan's due process rights by Dean Mutua were not

random and unauthorized.………………..………………………………...…………...………32

B. The circumstances of Professor Malkan's wrongful termination could not have qualified

for a grievance under the SUNY/UUP Collective Bargaining Agreement

(CBA)………………….……………………………...……………………………………..…….33

C. The stigma caused by Professor Malkan’s dismissal from a 405(c)-protected appointment

could only have been averted by pre-deprivation due process…………………………...........34

D. Professor Malkan did not forfeit his right to pre-deprivation due process either by filing a

"Notice of Claim" within the Court of Claim Act's statute of limitations, or by the UUP's

filing of an improper practice charge within the Taylor Law's statute of

limitations……………………………………...………………………………………………….39

E. Neither a breach of contract claim in the Court of Claims nor an improper practice

charge before the Public Employment Relations Board could represent adequate post-

deprivation due process in this case……………………………………………………………..40

F. Professor Malkan is not required to prove that if he had received the process he was

due, the faculty would have recommended the renewal of his appointment and the Dean

would have endorsed it……………………………………………..……………………….……42

III. DEAN MUTUA IS NOT ENTITLED TO QUALIFIED IMMUNITY BECAUSE NO

REASONABLE PERSON COULD POSSIBLY HAVE BELIEVED THAT HIS

MALICIOUS AND CRIMINAL MISCONDUCT WAS LEGALLY JUSTIFIED….………48

CONCLUSION……………………………………………………………………..……...…………….50

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PRELIMINARY STATEMENT

This Memorandum is submitted in support of a cross-motion for partial summary

judgment by plaintiff Jeffrey Malkan, former Clinical Professor of Law at SUNY Buffalo Law

School, on the issue of liability, and in opposition to the motion for summary judgment made by

defendant Makau W. Mutua, Dean of SUNY Buffalo Law School, who seeks dismissal with

prejudice of plaintiff Jeffrey Malkan’s claims against him for compensatory and punitive

damages, including attorneys’ fees.

The action is brought pursuant to 42 U.S.C. § 1983, alleging a deprivation of property

without due process of law by a state official acting under color of state law, in his personal

capacity, in violation of the Fourteenth Amendment to the Constitution, and seeks relief in the

form of damages against Dean Mutua, as permitted by law.

During the course of this Motion, former Vice-Dean Charles P. Ewing and other senior

members of the Law School faculty have come forward to confirm that Dean Mutua, in a further

attempt to obstruct Professor Malkan’s right to due process, swore falsely in both state and

federal courts about material facts in this case.

In addition, Dean Mutua’s submissions about the SUNY Trustees' Policies, which have

the force and effect of state law, are so contrary to the University’s regulatory commitments and

long-standing personnel practices that no reasonable person could conclude that he truly believes

them or that they formed the basis for his decisions and actions against Professor Malkan.

A. Constitutional and Statutory Provisions

The Due Process Clause of the Fourteenth Amendment provides: “[Nor] shall any State

deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend.

XIV, § 1. In its application, the procedures set into place by the State to protect substantive

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constitutional rights must be observed by the State. “While the legislature may elect not to

confer a property interest in [public] employment, it may not constitutionally authorize the

deprivation of such an interest, once conferred, without appropriate procedural safeguards.”

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 540 (1985).

The essential requirements of due process are “notice and an opportunity to respond.” Id.

at 546. In applying these requirements to a § 1983 claim, “[t]he two threshold questions… are

whether the plaintiff possessed a liberty or property interest protected by the United States

Constitution or federal statutes and, if so, what process was due before the plaintiff could be

deprived of that interest.” Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995).

On the first element, the property interest may be based either on express contractual

agreements or on the unwritten “common law” of an institution of higher learning. Perry v.

Sindermann, 408 U.S. 593, 601-603 (1972). “A person's interest in a benefit is a ‘property’

interest for due process purposes if there are such rules or mutually explicit understandings that

support his claim of entitlement to the benefit and that he may invoke at a hearing.” Id. at 601.

On the second element, the process that is due must be determined by balancing the

employer’s interest in minimizing administrative burdens, the employee’s interest in retaining his

or her livelihood, and the risk of injustice through wrongful termination. See Mathews v.

Eldridge, 424 U.S. 319, 335 (1976). This test ordinarily requires pre-deprivation due process.

“Before a person is deprived of a protected interest, he must be afforded opportunity for some

kind of a hearing, ‘except for extraordinary situations where some valid governmental interest is

at stake that justifies postponing the hearing until after the event.’” Moffitt v. Town of Brookfield,

950 F.2d 880, 885 (2d Cir. 1991) (citation omitted).

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B. Procedural Background

The complaint was filed pursuant to 42 U.S.C. § 1983 on March 23, 2012, against Dean

Makau W. Mutua and Vice-Dean Charles P. Ewing. A motion to dismiss in lieu of an answer,

on May 8, 2012, was filed on behalf of both defendants. The motion was denied by Hon.

Richard J. Arcara, dated October 2, 2012. See Ex. J. Judge Arcara ruled that the allegations of

the Complaint stated a cause of action under § 1983 and that the substantial federal interests

involved in this case precluded a stay pending a final decision from the state judge in the Court

of Claims litigation.

The Attorney General then answered the complaint for Dean Mutua and Vice-Dean

Ewing on October 23, 2012, denying Professor Malkan’s allegations and raising an affirmative

defense of qualified immunity. The case was assigned to Hon. H. Kenneth Schroeder, Jr. for

pre-trial proceedings. Hugh M. Russ, Esq. mediated the mandatory ADR under the Rules of this

Court on March 1, 2013, with Vice-Dean Ewing now represented by private counsel.

Dean Mutua, with no advance notice, did not appear for the mediation. The Attorney

General informed Mr. Russ that Dean Mutua, due to a scheduling mishap, had committed to

another engagement at the same time and had chosen to honor his other engagement. After

consultations with the University, the Attorney General notified counsel and Mr. Russ that no

settlement offer would be forthcoming. Depositions were completed on December 20, 2013.

President Satish K. Tripathi declined to sit for a deposition and instead submitted a sworn

affidavit, dated December 5, 2013, denying any prior knowledge of the allegations of this case.

Dec. of Satish K. Tripathi (Tripathi Dec.); see Ex. J. Vice-Dean Ewing’s motion for summary

judgment was filed on May 23, 2014, followed by Dean Mutua’s on June 6, 2014.

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On August 13, 2014, Vice-Provost Ewing filed a motion for separate trials on the grounds

that the Court had compelling and possibly conclusive evidence before it to conclude that Dean

Mutua had committed perjury in both state and federal courts, and that trying both defendants

together ran the risk of tainting Vice-Dean Ewing with the criminal misconduct of his co-

defendant.

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ARGUMENT

I. PROFESSOR MALKAN HAD A FEDERALLY-PROTECTED PROPERTY

INTEREST IN HIS EMPLOYMENT BASED ON HIS CONTRACT, STATE

TITLE, ACADEMIC RANK, AND THE INSTITUTIONAL RULES THAT

APPLIED TO HIS STATUS.

Professor Malkan’s due process claim cannot be dismissed for failing to establish the

threshold element of a protected property interest. To the contrary, his Contract, signed and

filed by then-Dean R. Nils Olsen in accord with the procedures of the Provost's Office, gave

him a protected property interest as defined by federal law under any reasonable understanding

of the customs and practices of academic employment at all institutions of higher education as

well as the specific legal requirements binding on the administration at SUNY Buffalo.

A. The Contract was intended to – and did – provide “tenure-like” protection.

There is no dispute that in the weeks and months following the April 28, 2006 meeting of

the Promotion and Tenure (P&T) Committee, then-Dean Olsen, then-Vice Dean Susan V.

Mangold, and Professor Malkan discussed and negotiated the terms of his Contract. All parties

in this case also agree that it was intended to provide Professor Malkan with “tenure-like”

protection. This crucial fact is undisputed, but its significance is not.

The purpose of the Contract on its face was to specify (a) the relationship between

Professor Malkan’s administrative appointment as Director of the Legal Research and Writing

Program (LRW) and his faculty appointment as Clinical Professor of Law, (b) his required

teaching load and how his teaching assignments were to be distributed between first-year legal

writing, upper division legal writing, and any doctrinal courses he was qualified to teach, and (c)

how the general language of ABA Standard 405(c), the clinical faculty standard, would apply to

his unique position in the Law School as the only professor with both a commitment to teaching

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first-year legal writing and membership on the voting faculty. These are entirely valid and

appropriate purposes and typical of the issues addressed in faculty employment contracts.

Vice-Dean Mangold, who had chaired Malkan’s P&T review, knew what terms and

conditions of employment the faculty had discussed and approved. Olsen Dep. at 37; see Ex. G.

Professor Malkan wrote her an e-mail, dated May 12, 2006, regarding points he would like the

Dean to consider. Mangold Disclosures; see Ex. C. Dean Olsen contributed provisions

regarding terms and conditions that he had determined were required for compliance with ABA

Standard 405(c) in prospect of the Law School’s reaccreditation in 2009. Dean Olsen reviewed

and revised the final draft. Mangold Dep. at 32-33; see Ex. C.

The Contract was then signed by Dean Olsen on October 16, 2006, and countersigned by

Professor Malkan on November 19, 2006, with a copy filed in the Dean’s Office personnel file.

Professor Malkan received a “Letter of Appointment” from then-President John B. Simpson

conferring upon him the state title and academic rank of Clinical Professor for a three-year term

ending on August 31, 2009. Mutua Disclosures; see Ex. A.

B. Dean Mutua’s claims that Dean Olsen exceeded his authority are entirely false.

Dean Mutua has taken every opportunity to disparage “term contract” appointees (as well

as clinical professors, in general) as if the phrase signifies transient academics who are employed

by the faculty without being members of the faculty. He has also asserted that all term contracts

are revocable at the Dean’s unfettered discretion every time they come up for renewal – in this

case, every three years – even though the Law School could not compete for faculty in a national

job market, much less qualify for ABA accreditation, if it disclosed that it does not provide any

meaningful job security to clinical professors or junior (assistant or associate) professors, who

are all initially hired on consecutive term contracts.

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In fact, Professor Malkan was not a decanal appointee, that is, an adjunct or instructor,

but was hired and promoted by the faculty, just like every other clinical professor and every

other member of the voting faculty. Malkan PERB testimony (direct) Nov. 17, 2009, at 32-36,

see Ex. B. Dean Mutua has made several arguments for why the Contract nevertheless did not

provide Professor Malkan with a protected property interest in state employment. All of these

arguments culminate in the contention that Dean Olsen’s exercise of his decanal authority to

confer “tenure-like” protection was unlawful and ultra vires. None has any merit at all.

Rebuttal #1. Dean Olsen did not exceed the scope of this authority by

appointing Professor Malkan to the state title and academic rank of Clinical

Professor.

Professor Malkan does not contend that Dean Olsen appointed him to the title and rank of

Clinical Professor. Dean Olsen received a favorable recommendation from the P&T Committee,

endorsed that recommendation, and sent it to the Provost, who in turn endorsed it and sent it to

the President. The President, accepting these recommendations, issued a Letter of Appointment

to Professor Malkan.

The President’s signature was the act of appointment. Dean Mutua confirmed that this

has always been the University’s practice and procedure. Mutua PERB testimony (cross) April

1, 2010, at 266; see Ex. A; see also Mangold Dep. at 37.

Rebuttal #2. Dean Olsen did not exceed the scope of his authority when he

signed a Contract whose terms and conditions of employment were in accord

with the Law School’s institutional guidelines and procedures.

The error here is the distorted reading of the Law School’s “governing rules” advanced

by Dean Mutua to support this defense. In fact, the Contract – in its context of the SUNY

Trustees’ Policies, the Law School’s operating requirements (i.e., the ABA Standards), and

faculty’s in-house rules and procedures – did not violate any institutional rule at all. This is how

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Dean Mutua, in his deposition on December 19, 2013, described Dean Olsen’s alleged

dishonesty and abuse of power in granting the Contract:

This [Contract] is a contorted document which lies on the face of

it. It’s a defensive document. It anticipates being challenged. It

seeks to evade – circumvent existing rules to provide for Mr.

Malkan a job title and appointment he was not entitled to…. I have

never seen a letter written like this in my term as Dean…. It’s a

contortion of the law.

Deposition of Makau W. Mutua (Mutua Dep.) at 111; see Ex. A. (emphasis added). In fact,

Dean Mutua claimed in his PERB testimony that he was so sure of himself that he did not see

any need to consult University counsel about breaking Professor Malkan’s Contract.

Q So you didn't think you were bound by the terms

of that letter?

A No, I did not.

Q And did you ever check with Employee Relations

about that?....

A No, the letter itself, I mean, speaks for

itself. It was -- it's an outrageous piece of

legal craftsmanship.

Q So you didn't feel like you needed to consult

with anyone –

A No, no, no, I did not. I'm trained as a lawyer,

and any lawyer worth his salt can determine on

the first pass that the letter is, you know, just

an outrageous piece of legal writing.

Mutua PERB testimony (cross) April 1, 2010, at 314; see Ex. A.

When he gave this testimony, Dean Mutua neglected to mention that eight days before

signing the non-renewal notice he had received an e-mail from James L. Jarvis, Esq., warning

him of “risks attendant to potential litigation” if the Contract was broken. Jarvis Disclosures; see

Ex. E. This e-mail from Mr. Jarvis was a follow-up to one sent earlier that summer by Dean

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Mutua to University counsel, and copied to Vice-Provost Lucinda M. Finley, asking for advice

about how to minimize the risk of litigation and make the non-renewal notice “airtight.” See

Dean Mutua, e-mail to Lewis Rosenthal, Esq. re Professor Jeffrey Malkan, July 11, 2008, at 42-

43, infra.

Dean Mutua’s allegations of dishonesty by his predecessor in office, Dean R. Nils Olsen,

Jr., in his recommendation of Professor Malkan’s reappointment and promotion are serious and

unprecedented, and must be closely examined in light of all the “governing rules.”

(a) The SUNY Trustees’ Policies. Dean Mutua argues that the Policies of the SUNY

Board of Trustees1 unconditionally forbid presumptively-renewable term contracts for Clinical

Professors, although he does not deny that such contracts may be renewed at the institution’s

discretion and that Clinical Professors with term appointments may be included in the voting

faculty, as indeed they are in the Law School. See SUNY Trustees’ Policies Art. X, §3(b). He

further claims that all term contracts in SUNY expire automatically at the end of their term, that

there is no appeal from the non-renewal of a term contract, and that any attempt by a Dean to

grant any expectation of a renewal term is ultra vires and unenforceable.

Professor Malkan does not dispute that SUNY term contracts automatically expire unless

they are renewed (id., Art. XI, Title D, §1), that they are subject to a twelve-month notice

requirement to keep them from “rolling over” for an additional one-year term, (id., Art. XI, Title

D, §5), and that these notices may be served prior to whatever in-house “consultation” is deemed

by the institution to be “appropriate” (id., Art. XI, Title A, §1). (The usual practice, however, is

for the Dean to provide the twelve-month notice after any in-house reviews have been

1 Policies of the SUNY Board of Trustees, at http://www.suny.edu/media/suny/content-

assets/documents/boardoftrustees/SUNY-BOT-Policies-June2014.pdf (codified at 8 N.Y. Comp.

Codes R. & Regs., tit. 8, § 325, et seq.) (last visited August 18, 2014); see Ex. K.

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completed.) He also agrees that the SUNY Trustees’ Policies specify that there is no appeal to

the SUNY Chancellor from non-renewal of a term contract (id., Art. XIV, Title B, §1), although

this language cannot possibly mean that in-house appeals processes or judicial redress based on

common law or statutory causes of action are likewise precluded.

The rest of Dean Mutua’s argument, however, is entirely wrong. The SUNY Trustees’

Policies do not forbid presumptively-renewable term contracts. This is the key provision:

§4. Renewal of term. Except as provided in this Article, term

appointments may be renewed by the chief administrative officer

of the college for successive periods of not more than three years

each; such renewals shall be reported to the Chancellor. No term

appointment, of itself, shall be deemed to create any manner of

legal right, interest or expectancy in any other appointment or

renewal.

Id., Art. XI, Title D, §4 (emphasis added); see Ex. K. Dean Mutua interprets this language to

mean that presumptively-renewable term contracts are categorically forbidden. He neglects,

however, to explain the qualification “of itself.” An accurate paraphrase would have to provide a

reference for that qualification. “No term contract, of itself, creates a legal right, interest or

expectancy of renewal, but conditions may be added to provide that legal right, interest or

expectancy of renewal.”

The “renewal of term” provision, in other words, rules out a breach of contract claim

based on an implied expectation of renewal, but not one based on an express expectation of

renewal.

Dean Olsen provided an express expectation of renewal in Professor Malkan’s Contract.

Subsequent to the P&T Committee’s recommendation that Professor Malkan be granted an ABA

Standard 405(c)-protected contract, Dean Olsen extended an expectation that the Contract would

be renewed by providing a presumption of renewal, a good cause standard of review, and due

12

process rights before a committee comprised of the entire tenured faculty at his rank or higher

(the Committee on Clinical Promotions and Renewals or “CCPR”) as specified in the Faculty

Bylaws. Bylaws and Standing Orders of the Faculty of SUNY Buffalo Law School, III.E.4,

available on-line at http://www.law.buffalo.edu/infoStaff/facultyBylaws.html; see Ex. K.

These provisions were intended to create “tenure-like” protection through a burden-

shifting process. They were perfectly legal and, indeed, necessary as explained below. A legal

presumption (in this case a rebuttable presumption) mandates that, after a prima case for

continued employment is presented, a decision will be made in favor of the presumption-holder

unless evidence is proffered to rebut the presumption. This means that, upon a showing that the

professor has continued to perform his or her duties as expected, the Contract will be renewed

unless evidence is provided, and accepted as persuasive, that good cause has been stated for not

renewing it. The burden of persuasion will then shift, requiring the professor to present reasons,

with the assistance of an advocate, for why his or her failure of performance or personal

misconduct should be overlooked and a renewal term granted.

(b) The ABA Standards. This presumption of renewal is legal for the additional reason

that the Policies of the SUNY Board of Trustees confer discretion upon the Dean to approve

policies and procedures in matters of appointment, evaluation, and promotion as required by “the

operating requirements of the college.” See SUNY Trustees’ Policies, Art. XI, Title A, §1; id.,

Art. XII, Title A, §2; id., Art. XX, Title B, §1. The “operating requirements of the college,” in

this context, are the ABA accreditation standards with which the Law School must comply in

order to certify its students for the bar examinations of New York and other states.

The applicable provision of the ABA Standards for Accreditation Law Schools is

Standard 405(c) – the clinical faculty standard – which provides as follows: “A law school shall

13

afford to full-time clinical faculty members a form of security of position reasonably similar to

tenure, and non-compensatory perquisites reasonably similar to those provided other full-time

faculty members. A law school may require these faculty members to meet standards and

obligations reasonably similar to those required of other full-time faculty members.” See

http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/2013

_2014_standards_chapter4.authcheckdam.pdf (last visited August 18, 2014). The phrase

emphasized in italics, “a form of security of position reasonably similar to tenure,” is the source

of the “tenure-like” protection that all parties agree the Contract provides.

(c) The Faculty Bylaws and Clinical Faculty Appointments Policy. It is mandatory for

“the faculty of each college” to prepare and adopt bylaws, and for these bylaws to be “consistent

with and subject to the Policies of the Board of Trustees of the State University of New York, the

laws of the State of New York, and the provisions of agreements between the State of New York,

and the certified employee organization established pursuant to Article 14 of the Civil Service

Law.” SUNY Trustees’ Policies, Art. X, § 5 (a) and (b). The administrative officer at SUNY

Buffalo who is responsible for monitoring the consistency of the Faculty Bylaws with the SUNY

Trustees’ Policies is none other than the state official to whom Dean Mutua reports, the former-

Provost/now President Satish K. Tripathi. See id., Art. IX, Title A, §3.

The Faculty Bylaws and the Clinical Faculty Appointments Policy – both of which were

in place in their present form in spring 2009, the last semester of Professor Malkan’s

employment – provide that Clinical Professors in the Law School must be granted

presumptively-renewable term contracts and in-house due process protections sufficient to

protect their academic freedom in accord with ABA Standard 405(c). The Faculty Bylaws

require that before a Clinical Professor may be dismissed, the faculty shall deliberate and make a

14

recommendation to the Dean in the Committee on Clinical Promotion and Renewal (“CCPR”).

Id., III.E.4, see Ex. K (emphasis added).2

The Clinical Faculty Appointments Policy specifies the process that implements the

structure of faculty self-governance adopted in the Faculty Bylaws. See id., I.(e)-(g); Ex. K. It

includes (i) a presumption of renewal – “it is expected that, absent unusual circumstances, the

three-year term contracts for Clinical Professors will be renewed,” and (ii) a “good cause”

standard of review – “[i]n cases where the issue is the performance of the Clinical Professor, the

Dean shall base a decision not to renew on clear evidence of a failure to maintain the

demonstrated ability established in the prior reviews and recommendations in the promotion and

renewal process.” It also provides (iii) an in-house appeal from a negative decision by the Dean,

and (iv) recognizes that the ABA five year term will become the standard contract term for

Clinical Professors if and when the SUNY Trustees’ Policies are amended to grant permission.

Dean Mutua did not allow the faculty to recommend Professor Malkan’s term contract

renewal or hear his grievance about the denial of his right to due process under the Bylaws,

either in the Committee on Clinical Promotion and Renewal (CCPR) or in any other in-house

forum, including the Grievance Committee. The effect was a complete denial of due process –

overriding the rules and regulations implemented by the faculty for the protection of its integrity

and academic freedom – in which Dean Mutua took the unprecedented step of firing a member

2 “Indefinitely renewable” means that there is no limit on the number of times a contract may be

renewed. “Presumptively renewable” means the burden of proof lies with the party who is

advocating non-renewal. Dean Mutua did not seem to understand that neither of these terms

means automatically renewable (which would imply an irrebutable presumption of renewal),

although his confusion may have been feigned. “You cannot simply provide that the process of

the three year term renewals then continues indefinitely. I mean, that is an illegality on the face

of it…” Mutua Dep., at 109-110; see Ex. A (emphasis added).

15

of the voting faculty at the rank of Clinical Professor with a full-time, indefinitely renewable

appointment, without consulting or even informing the faculty.

(d) The University’s personnel policies and procedures.

In his August 28, 2008 letter to Professor Malkan, Dean Mutua failed to mention that

before the decision became final, he have to would receive in-house due process, and that after

the decision was final, he would have to receive a written notice informing him of his right to

appeal to the Provost. See “Notice of Nonrenewal,” in Faculty-Staff Handbook, II.B.2.c, at

http://www.business.buffalo.edu/UbbContent/Hrs/facultyhandbook/III.htm#A.

The University, moreover, cannot possibly maintain that the decisions and actions of its

senior administrators, former-Dean Olsen and present-Dean Mutua, were unauthorized and “ultra

vires” under the University’s rules, much less in need of “ratification” by anyone. The evidence

conclusively proves that then-Provost/now-President Tripathi knew what the Law School was

doing as it was doing it, both in the particular case of Professor Malkan’s reappointment and in

the way it was handling clinical appointments in general.

What is particularly unsettling is that Dean Mutua argues that his predecessor, Dean R.

Nils Olsen, Jr., abused his authority by granting an “ultra vires” employment contract to a

Clinical Professor while neglecting to mention that all parties agree he is doing exactly the same

thing himself – providing “tenure-like” protection to Clinical Professors.

The other two Clinical Professors, George Hezel and Suzanne Tomkins, whose contracts

expired on the exact same date as Professor Malkan’s, August 31, 2009, and were due to be

renewed at the same time, were brought before the faculty by Dean Mutua on April 22, 2009, at

which time they received favorable decisions on their reappointments.

16

Dean Mutua reported the faculty’s April 22, 2009 vote to then-Provost Tripathi and asked

for the Provost’s endorsement of these two renewals. In this request, Dean Mutua wrote

identical memoranda for both Clinical Professors stating that their “reappointment[s] to the title

of Clinical Professor [are] pursuant to our Law School Standards for Clinical Appointments,

approved by the faculty on March 20, 2009. These Standards identify a renewable contract

alternative to tenure-track appointments and a “regularized process” for appointment and

retention decisions at a qualified rank.” Mutua Disclosures; see Ex. A (emphasis added).

Provost Tripathi, when he received these memoranda from Dean Mutua, was already

fully aware of the Law School’s “regularized process” to provide security of employment to

Clinical Professors “reasonably similar to tenure,” as required by ABA Standard 405(c), the

Faculty-Staff Handbook, and the Faculty Bylaws.

It was entirely logical for Dean Mutua, in his memoranda to then-Provost Tripathi, to

refer to a “regularized process” because they both knew that the SUNY Trustees’ Policies do not

forbid presumptively renewable contracts with pre-deprivation due process rights. They also

must have known – either from personal knowledge or through advice from SUNY counsel –

that Provost Tripathi was responsible for the “regularized process” for reviewing and granting

final approval of term contract renewals. See Faculty-Staff Handbook, at II.B.1; Ex. K.

To repeat, this was exactly the process that was due Professor Malkan before the end of

his contract term and the process that Dean Mutua prevented him from receiving.

In addition, Provost Tripathi and Dean Mutua certified to the ABA Section on Legal

Education – on the occasion of the ABA Site Visit on April 8-11, 2009 – that the Law School had

never terminated a Clinical Professor and was in full compliance with Standard 405(c).

17

This certification took the form of the Self-Study Report, approved by the faculty on

January 21, 2009 and revised on March 2, 2009. On October 17, 2011, the ABA Consultant on

Legal Education, Hulett H. Askew, Esq., by letter, informed then-President John B. Simpson and

Dean Makau W. Mutua that the Law School’s reaccreditation was approved and enclosed the

final Findings of Fact of the Site Evaluation Team. The ABA’s Findings of Fact regarding

Standard 405(c) were based entirely on the Self-Study Report and information provided by the

Law School to the Site Visit Team while it was on-campus, and included the following:

(48) The Law School recently adopted a new Clinical Faculty

Appointment Policy. The policy provides for the initial

appointment of non-tenure-track clinical faculty who are eligible

for “long term” renewable appointments, as well as for the

promotion to the ranks of associate and full clinical professor and

for a presumption of renewability once a person achieves the rank

of full clinical professor.

(49) The Policy also states that the Clinical Director will make

recommendations for reappointment to the Committee on Clinical

Promotion and Renewal which, in turn, will make

recommendations to the Dean.

(50) The Policy expressly provides that: “[i]n cases where the

issue is the performance of the Clinical Professor, the Dean shall

base a decision not to renew on clear evidence of a failure to

maintain the demonstrated ability established in the prior reviews

and recommendations in the promotion and renewal process.”

(51) Because the Policy was only adopted in March 2009, there

has been no experience in applying it. Under a prior policy, the

Law School had never denied reappointment to a Clinical

Assistant, Associate or Clinical Professor appointed pursuant to

an indefinitely renewable long-term contract, despite the prior

absence of any language relating to the contract being

presumptively renewable.

ABA Site Visit Team Findings of Fact, Oct. 17, 2011, at 9 (emphasis added); see Ex. K. These

Findings of Fact prove that then-Provost Satish K. Tripathi was aware that the Law School was

18

required to provide “tenure-like” protection to Clinical Professors and was doing so, unless he

wants to admit that he and Dean Mutua were attempting to perpetrate a fraud on the ABA.

They also prove that the Law School lied to the ABA about its implementation of

Standard 405(c). The ABA came away from the site visit falsely informed that “the Law School

had never denied reappointment to a Clinical Assistant, Associate or Clinical Professor

appointed pursuant to an indefinitely renewable long-term contract, despite the prior absence of

any language relating to the contract being presumptively renewable.” Id.

At his December 19 deposition, Dean Mutua tried to defend this lie with another lie. At

the deposition he claimed that the Site Visit Team already knew about Professor Malkan’s

termination and asked him what he was going to do to prevent the situation from recurring.

Dean Mutua’s answer, as he reported it on December 19, was evasive to the point of absurdity.

He claimed that the ABA had not been concerned that he had dismissed a Clinical

Professor without good cause or due process, but rather was concerned that Professor Malkan

had been appointed as a Clinical Professor in the first place, as if that were the 405(c)-

compliance problem. Mutua Dep. at 114; see Ex. A. The ABA’s concerns were relieved,

according to Dean Mutua, when he assured the Site Visit Team that this impropriety had been

corrected.

A. When the ABA came to the law school, they raised the issue,

this issue of Mr. Malkan being placed under the wrong category,

yeah.

Q. And what did you tell them?

A. I told them that he had left already, the law school and that that

was no longer the case and that there was no one else in the law

school who was mischaracterized.

Id.

19

Rebuttal #3. Dean Olsen did not fail to obtain a faculty recommendation on

Professor Malkan’s initial appointment to the rank of Clinical Professor.

The parties agree that the following certification, stated in ¶ 40 of the ABA Site Visit

Team’s Findings of Fact, is true:

(40) The Law School’s tenure and promotion standards spell

out the requirements as to teaching, scholarship, service, and

collegiality, which refer to the need for mutual respect and

tolerance of intellectual diversity. The University has not rejected

a Law School tenure or promotion recommendation in recent

memory.

Id. at 8; see Ex. K (emphasis added). The undisputed fact that follows from ¶ 40 is that the

Provost’s Office did not reject Professor Malkan’s Contract when it was presented to then-

Provost Tripathi by then-Dean Olsen in the fall semester of 2006 or make any objections to any

of its terms or conditions, including the five-year (“3+2”) term provision.

Dean Mutua nevertheless argues that he was legally authorized to terminate Professor

Malkan, with no due process, less than three years later. His rationale is that the Contract was

“ultra vires,” even though it had been accepted by the University, because then-Dean R. Nils

Olsen, Jr. had lied to then-Provost Tripathi about the P&T Committee’s recommendation. The

University, in other words, did not know what it was doing when it failed to reject the Contract.

Dean Mutua has twice testified under oath, at an interval of over three years, in both state

and federal courts, that the P&T Committee, on April 28, 2006, adjourned without taking a vote

on Professor Malkan’s application for promotion. Instead he claims the P&T Committee

approved on an entirely different resolution – a recommendation that Professor Malkan receive a

one-year terminal appointment to the administrative post of legal writing director.

The evidence produced on this Motion, including the evidence provided by Vice-Dean

Ewing in his Motion for Separate Trials (August 13, 2014), conclusively proves that Dean

20

Mutua, both on March 31-April 1, 2010 in state court, and on December 19, 2013 in federal

court, lied under oath about material and possibly dispositive facts in both of these litigations,

and that the effect of his false testimony was to taint the decision of the Public Employment

Relations Board (PERB) as well as to disrupt the due process of law in this case.

Rebuttal #4. Dean Olsen did not act in an “ultra vires” manner by granting an

employment contract at the title/rank of Clinical Professor to an “imposter.”

Dean Mutua’s repeated claim throughout this case has been that Professor Malkan was

never really a Clinical Professor, but only an “out of category” legal writing instructor.

In accord with his policy of correcting what he says were his predecessor’s inaccurate

and illegal conferral of titles and ranks, Dean Mutua was determined to demote Professor

Malkan by any means at his disposal and within his powers as Dean of the Law School. In this

pursuit he was encouraged and supported by the Office of the Provost, in particular, by Vice-

Provost for Faculty Affairs Lucinda M. Finley who was informed at the time about every phase

of Professor Malkan’s dismissal.

(a) Dean Mutua’s claims about Professor Malkan’s status have been deceptive and false.

Dean Mutua has never wavered from the position – based on his self-professed ignorance

of the facts and circumstances of Professor Malkan’s credentials, recruitment, and initial hire –

that Professor Malkan did not have a valid employment contract because he was never a SUNY

Clinical Professor, but only an “out of category” legal writing instructor, indistinguishable from

any other at-will instructor or adjunct in the Law School on a limited term contract.

Q. Did anybody tell you that Professor Malkan was actually hired

differently than the instructors?

A. No one told me that.

Q. Did you know or review Professor Malkan's credentials?

21

A. No….

Mutua Dep. at 70-71 (emphasis added); see Ex. A.

No sensible explanation, however, has ever been advanced by Dean Mutua or anyone

else of how this claim can be reconciled with the Letter of Appointment that Professor Malkan

received from former-President John B. Simpson conferring upon him the state title and

academic rank of Clinical Professor. The President’s Letter of Appointment is especially

inconvenient in view of the undisputed fact that the only definition of “Clinical Professor” in the

Policies of the SUNY Board of Trustees is a “qualified” faculty member holding a “title or

academic rank preceded by the designation ‘clinical.’” Art. II, §1(k); see Ex. K. The ABA

Standards do not define “Clinical Professor” at all.

Even so, Dean Mutua continues to say the same thing over and again, each version more

implausible than the last. On December 19, 2013, he provided the following testimony about

how ABA Standard 405(c) related to Professor Malkan’s faculty appointment and Contract.

A. The interpretation of those rules forbids secreting or hiding an

instructor under the category of Clinical Professor, someone who is

not a Clinical Professor, and that is exactly what this paragraph

purports to do….

Q. But does the ABA forbid giving 405(c) status to a research and

writing instructor?

A. I do not understand under what circumstances a law school

dean would appoint someone into the law school faculty as a

Professor of Medicine, for example… I mean it would be a patent

illegality, even a patent stupidity.

Mutua Deposition at 112-113; see Ex. A.

He elaborated upon this “patent illegality” and “patent stupidity” by maintaining that

Professor Malkan was an “imposter.”

22

Q. But within the University you will agree he had the position of

Clinical Professor?

A. He didn’t.

Q. He didn’t have the position of Clinical Professor?

A. He did not…. It would simply not make sense. So what I’m

trying to say basically is that Mr. Malkan was an imposter. He was

posing as a Clinical Professor when he was not. He was an

imposter….

Q. Let me get this correct – under his pay and title with the

University of Buffalo it has him as you understood it as a Clinical

Professor?

A. I did not understand it as a Clinical Professor. I understood

him to be an imposter posing as a Clinical Professor.

Q. You understood he was still getting paid by the University.

A. Yes, but imposters can get paid.

Q. Did you go to the Provost and have the discussion about him

being an imposter?

A. This is why I non-renewed, this is why I non-renewed him

because he was an imposter.

Mutua Dep. at 180-181; see Ex. A. Dean Mutua provided a similarly evasive and dishonest

answer at his December 19 deposition when asked to comment on the following passage in the

ABA Self-Study Report:

The first-year Legal Research and Writing (LRW) course is staffed

by a professional skills instruction faculty of seven. With the

exception of the former Director, who is categorized

administratively as a 405(c) clinical professor on a long-term,

renewable contract, members of the LRW faculty are on short-

term contracts renewable annually, though authority exists to

renew these contracts for periods of up to three years.

23

Id. at 50 (emphasis added); see Mutua Disclosures, Ex. A. To the question of whether this

statement in the Self-Study was an admission by the Law School that Professor Malkan had been

a Clinical Professor at the time of the ABA’s sabbatical site visit, he replied:

I mean what I read, what I read in the statement you just read back

to me, it tells me that Mr. Malkan was classified administratively

as a Clinical Professor, administratively, which means that that is

no longer a position taken by the faculty, that’s a position taken by

the Dean [Olsen] to classify him as a Clinical Professor. So I

mean, you know, it’s a point that really – to me, that particular

point says to me that even the Dean [Olsen] understood that Mr.

Malkan was not a Clinical Professor. That’s why he had to

classify him administratively as a Clinical Professor.

Mutua Dep. at 123; see Ex. A.

This statement is garbled because Dean Mutua was trying to articulate a falsehood. He

was trying to imply that Professor Malkan did not have a legitimate faculty appointment because

he was administratively classified as a Clinical Professor. The problem with this implication is

that every member of the faculty is administratively classified as something. That does not mean

that all faculty appointments are illegitimate, or even that there is any “position” to be taken on

what they are.

Dean Mutua also maintained that he had never addressed Mr. Malkan as “Professor.”

Q. Do you know if you still refer to him as a Clinical Professor?

A. Say again?

Q. Do you know if you still refer to him as a Clinical Professor?

A. I have never referred to him as a Clinical Professor myself. I

call him, I've always referred to him as Mr. Malkan.

Q. Even when he was at the law school?

A. Either I referred to him as Jeff or Mr. Malkan, depending upon

the situation.

24

Mutua Dep., at 77; see Ex. A. On January 20, 2009, however, Dean Mutua notified his secretary

that “Mr. Malkan” was eligible, as a Clinical Professor, to participate in faculty governance for

the remainder of his term, that is, until the end of the academic year.

Cheri: Jeff is a Clinical Professor until May when his employment with UB terminates. He can serve on committees until then. Sara and Lauern should not serve on committees at all. I would agree with Lillie on the Admissions Committee -- she knows best who is off. Thanks! Makau Mutua Dean SUNY Distinguished Professor Professor of Law Tel: (716) 645-2052 Fax:(716) 645-5968 SSRN: http://ssrn.com/author538742

Jarvis Disclosures; see Ex. E.

Finally, Dean Mutua was asked at his December 19, 2013 deposition why he had framed

his August 28, 2008 letter to Professor Malkan in terms of Standard 405(c), and whether he

would concede that he had acknowledged in that letter that Professor Malkan’s Contract was the

contract of a Clinical Professor.

Q. Can you tell me why you included a discussion in that letter of

405(c) status?

A. Because the Former Dean had relied on 405 to justify this

illegal letter that he had given Mr. Malkan so I thought it was

important for me to clear up the matter.

Q. What do you mean when you say clear up the matter?

A. To let Mr. Malkan know that that particular rule could be used

to revoke his appointment.

Q. So you went ahead and let Mr. Malkan know that you were

complying with 405(c)...

25

A. I think what I was trying to do here was to put on the record the

reasons – one of the reasons for Mr. Malkan’s termination.

Mutua Dep. at 124; see Ex. A. In other words, Dean Mutua testified that although Standard

405(c) did not apply to Professor Malkan’s appointment, he acknowledged in the August 28

letter that it did apply, but only for the purpose of “letting Mr. Malkan know” that “[this]

particular rule could be used to revoke his appointment.”

(b) It is routine for legal writing faculty to be granted security of employment under the

umbrella of ABA Standard 405(c) as well the institutional rank of Clinical Professor.

Dean Mutua throughout this case has attempted to characterize the appointment of

Professor Malkan to the title/rank of Clinical Professor as a bizarre anomaly that urgently needed

his intervention. In fact, law schools throughout the United States routinely provide job security

to legal writing faculty under Standard 405(c).

In 2013 forty-two law schools confer 405(c)-status and another eighteen confer 405(c)-

track status on their legal writing faculty. Many others, in addition, confer the title of Clinical

Professor on their legal writing teachers. See ALWD/LWI 2013 Report of Annual Legal Writing

Survey at 36, 63-65, http://www.lwionline.org/uploads/FileUpload/2013SurveyReportfinal.pdf.

Major universities like SUNY often have only a limited array of academic titles under

their charters that they can confer on their faculties. In addition, first-year legal writing is

usually considered to be a quasi-clinical course, that is, the prerequisite to all upper-division

clinical and skills courses. This is why Professor Malkan was initially appointed to the title and

rank of Clinical Associate Professor. Dean Olsen explained that the faculty decided to hire a

director who would have a permanent presence in the Law School so he could provide continuity

26

to a staff of LRW instructors on short-term contracts. There were no tenure-track lines available

at that time, so it was decided to make the hire on a clinical line. Olsen Dep.; see Ex. G.

Dean Olsen’s recollections are confirmed in a report on the clinical faculty submitted to

the faculty by Professors Sue Mangold and Tony Szczygiel on October 17, 2008.

Jeffrey Malkan, while Director of the Research and Writing

program, was awarded the title of Clinical Professor after a

renewal and promotion process similar to that in the current

Clinical Appointments Policy. We used this approach because the

Law School had no other established process and title for long-

term contract faculty outside the tenure track. If we continue to

have such positions requiring long-term contracts outside the

clinic, the faculty should decide what procedures, standards and

titles apply to such individuals.

Professors Sue Mangold and Tony Szczygiel (after consultation with Sue Tomkins), Report and

Recommendations on the Law School's Clinical Faculty Appointments Policy (October 17,

2008), at 1-2, n 1; see Mangold Disclosures, Ex. C.

(c) The designation “Clinical Professor” at SUNY Buffalo has always denoted a state

title and academic rank rather than a clinical teaching assignment.

In that same Report, Professors Sue Mangold and Tony Szczygiel explained that there

has never been a distinct barrier between the clinical curriculum and the rest of the curriculum.

The UB Law School has a mixed clinic model, with clinic

faculty being 1) tenure track; 2) long-term contract track 3) short-

term contract track and 4) adjuncts…. We anticipate that Nils

Olsen will return to clinical teaching as of Spring 2009. Other

faculty members, including Bob Berger, Barry Boyer, Phil Halpern

and Peter Pitegoff have offered clinics in the past.

Id. at 1, n.1. In other words, members of the tenured and adjunct faculty teach in the clinics

alongside clinical faculty, and members of the clinical faculty teach in doctrinal and skills

courses alongside tenured and adjunct faculty. Under this “mixed model” there is nothing

27

anomalous about a Clinical Professor being appointed to direct and teach in the legal writing

program and to teach doctrinal courses as well.

Again, at SUNY Buffalo Law, as at most other U.S. law schools, the term “Clinical

Professor” denotes a university title and academic rank – not a clinical teaching assignment.

Vice-Dean Mangold reminded the P&T Committee: “[h]is appointment as Clinical Associate

Professor is the formal SUNY title and is used at the law school for those with renewable

contracts.” Mangold Disclosures (emphasis added); see Ex. C.

The tenured faculty at SUNY Buffalo throughout the eight years of Professor Malkan’s

employment was well aware of these employment practices and this history. No one ever asked

Professor Malkan why he held a clinical rank and was up for promotion to a higher clinical rank,

including then-Professor Mutua. In fact, no one who had been on the faculty in 1999-2000 was

in any doubt about why Professor Malkan had a clinical appointment and how he came to hold it.

The story of the faculty’s “angst” and puzzlement about what he was still doing in the building

after he had been fired is another of the lies told by Dean Mutua to justify his abuse of power.

Mutua PERB testimony (direct), March 31, 2010, at 174, 177; Mutua Dep., at 31-32; see Ex. A.

Rebuttal #5. Dean Olsen did not act in an “ultra vires” manner when he

granted Professor Malkan a three-year contract term with a two-year

“administrative extension” for the sole purpose of reconciling ABA Standard

405(c) and the SUNY Trustees’ Policies.

Dean Olsen testified that he was concerned about the ABA Site Visit that was expected in

2008-2009. He anticipated that the ABA might object to the three-year contract terms that the

Law School was providing at that time to Clinical Professors because Standard 405(c) mandates

a five-year contract term. Vice-Provost Finley was equally concerned and said that “we are

going to have to figure out a way the law school can comply both with its new accreditation

28

standard, and with the procrustean SUNY policies.”3 In order to harmonize the two rules, and

after consulting the Provost’s Office and SUNY Central, Dean Olsen came up with the

accommodation of framing clinical contracts, for all present and future clinical professors, as

three-year terms with two-year extensions for a total of five-years. Olsen Dep.; see Ex. G.

This was not Professor Malkan’s request or even his desire, although he had no objection

to it. It came from Dean Olsen, after consultation with the Provost’s Office and SUNY Counsel

about alternative ways to avert a potential conflict with the ABA. Id. It was, in other words, a

good faith attempt to solve an accreditation problem, and not something that was done to favor a

particular faculty member. Professors Sue Mangold and Tony Szczygiel, in their October 17,

2008 report on the clinical program, described the term-contract situation and suggested that “the

faculty should review this policy and determine whether we can improve on this approach.”

The three-year limit in the SUNY Policy conflicts with ABA

Standard 405(c) [that mandates] granting of a long-term renewable

contract [defined as] “at least a five-year contract that is

presumptively renewable or other arrangement sufficient to ensure

academic freedom.”

As an interim measure to partially resolve this conflict, the Law

School has provided an automatic decanal two-year contract that

follows the three-year contract for our long-term contract clinical

faculty, to reach the five-year term. However, the faculty should

review this policy and determine whether we can improve on this

approach.

Recommendation #7: The APPC develop and recommend to the

faculty a resolution on the term limits for long-term contracts that

bring the Law School policy into compliance with the ABA

requirements. We could consider several possible actions including

the addition of Clinical Professor to the list of SUNY titles eligible

for 5-year contracts or identifying other arrangements sufficient to

ensure academic freedom.

3 E-mail from Vice-Provost Finley to J.L. Jarvis, Esq., copy to Vice-Dean Sue Mangold, re SUNY

term limits, Oct. 17, 2005; Mutua Disclosures, see Ex. A.

29

Report and Recommendations on the Law School's Clinical Faculty Appointments Policy,

October 17, 2008, at 5-6 (emphasis added); see Ex. K.

What is most irrational about Dean Mutua’s position is that he not only refused to honor

the mandatory two-year extension, but also proclaimed that the Contract was null and void in its

entirety, merely because of Dean Olsen’s good-faith effort to placate the ABA.

Q. So what did Professor Malkan have?

A. What do you mean, what did he have?

Q. In other words, if [the two-year extension] wasn’t permitted,

what did he have?

A. He had a contract that was null and void.

Q. So according to you, he had no contract at all with the

university?

A. No he didn’t.

Q. So why were you giving him notice?

A. Well, I was giving him notice to clear up the fact that there was

no contract because I think he was under the mistaken illusion that

there was a contract.

Mutua Dep. at 126; see Ex. A. It is unlikely that any reasonable person, just on the basis of

fairness and common sense, would assert that the two-year term extension inserted by Dean

Olsen dragged down the rest of the Contract with it, rendering it entirely null and void and

leaving Professor Malkan, for all his efforts, with nothing but this litigation.

In the years since he terminated Professor Malkan, Dean Mutua has not only refused to

offer Professor Malkan any gesture that would enable him to salvage his career and reputation,

such as a clarification or an apology, but has continued to defame him in an extreme and

30

outrageous manner that binds Professor Malkan to this lawsuit until his name is cleared. See,

e.g., Mutua PERB testimony (direct) March 31, 2010, at 205-208; Mutua Dep., at 67-68; Ex. A.

The basic principles of contract law, moreover, make such an assertion untenable.

“Whether a contract is entire or severable generally is a question of intention, to be determined

from the language employed by the parties, viewed in the light of the circumstances surrounding

them at the time they contracted (5 Williston, Contracts [3d ed.], § 767, p 629).” Christian v.

Christian, 42 N.Y. 2d 63, 73, 396 N.Y.S.2d 817 (1977). It is inconceivable that either Dean

Olsen or Professor Malkan would have jeopardized the entire contract for the sake of the “3+2”

provision. Their intention was to frame a valid 405(c)-compliant contract, not to test the limits

of the SUNY Trustees’ Policies or to give Dean Mutua an excuse for unraveling the agreement.

The notion that Dean Mutua was duty-bound to dispel Professor Malkan’s “mistaken

illusion that there was a contract” is equally disingenuous because, if Dean Mutua was inclined

to dishonor the two-year extension (which there was no urgent reason for him to do, except to

place Professor Malkan in closer proximity to the exit door), the only result would be that the

Contract would have come up for renewal during the academic year preceding September 1,

2009, rather than during the academic year preceding September 1, 2011. This difference would

have no effect on Professor Malkan’s right as a member of the voting faculty to pre-deprivation

due process as prescribed by the Faculty Bylaws and Clinical Faculty Appointments Policy.

31

II. PROFESSOR MALKAN WAS DENIED THE PRE-DEPRIVATION DUE

PROCESS TO WHICH HE WAS ENTITLED THROUGHOUT THE ENTIRE

LAST YEAR OF HIS CONTRACT TERM.

Dean Mutua contends that all the process that was due Professor Malkan has been or

could have been provided by post-deprivation remedies that the State makes available to any

employee who believes that he or she has been wrongfully terminated. This argument, however,

misconstrues the requirements of federal law.

The question of whether the State, under Mathews v. Eldridge, 424 U.S. 319, 335 (1976),

is allowed to forgo the pre-deprivation remedies that it has put into place to protect the rights of

its employees depends on a balancing of the competing interests. “These are the private interest

in retaining employment, the governmental interest in the expeditious removal of unsatisfactory

employees and the avoidance of administrative burdens, and the risk of an erroneous

termination.” Cleveland Bd. Of Ed. v. Loudermill, 470 U.S. 532, 542-43 (1985).

A. The violations of Professor Malkan's due process rights were not

“random and unauthorized.”

The principle that defines the “root requirement” of due process was stated by Justice

Harlan in Boddie v. Connecticut, 401 U.S. 371, 378-79 (1971) (emphasis added).

That the hearing required by due process is subject to waiver, and

is not fixed in form does not affect its root requirement that an

individual be given an opportunity for a hearing before he is

deprived of any significant property interest, except for

extraordinary situations where some valid governmental interest is

at stake that justifies postponing the hearing until after the event.

The contours of this right were addressed in Parratt v. Taylor, 451 U.S. 527, 543 (1981), a case

in which the claim for pre-deprivation due process was in fact denied. Justice Rehnquist held

that a prisoner whose mail-order “hobby kit” was lost by prison officials when they did not

32

follow their own mail distribution procedures did not have a right to pre-deprivation due process,

but in so doing placed limits on this exception.

[T]he deprivation did not occur as a result of some established

state procedure. Indeed, the deprivation occurred as a result of the

unauthorized failure of agents of the State to follow established

state procedures. There is no contention that the procedures

themselves are inadequate nor is there any contention that it was

practicable for the State to provide a predeprivation hearing.

Dean Mutua cannot avail himself of the Parratt exception to the general rule that pre-

deprivation due process is a constitutional right. This is because the violation in this case was

not the result of “random and unauthorized” failure by state agents to follow established state

procedures. Dean Mutua himself was the policymaker in the Law School who had the authority

to convene the CCPR for a hearing on Professor Malkan’s reappointment. He refused to do so,

even though he was familiar, both personally and through the advice of counsel, with the Faculty

Bylaws, the Clinical Appointments Policy, the SUNY Trustees’ Policies, the Collective

Bargaining Agreement, the Faculty-Staff Handbook, the ABA accreditation standards, and the

particular terms and conditions of Professor Malkan’s Contract.

It would be contrary to logic and common sense to say that Professor Malkan, under

color of state law, was deprived of his constitutionally-protected property interest by the random

and unauthorized actions of the chief administrative officer of the Law School, that is, the Dean.

See SUNY Trustees’ Policies, Art II, §1 (h) (defining “chief administrative officer”); Ex. K; cf.

Rivera-Powell v. N.Y. City Bd. of Elections, 470 F.3d 458, 465-66 (2d Cir. 2006) (Sotomayor, J.)

(“the acts of high-ranking officials who are ‘ultimate decision-maker[s]’ and have ‘final

authority over significant matters’… should not be considered ‘random and unauthorized’

conduct for purposes of a procedural due process analysis”). Dean Mutua decided exactly what

33

should be done to Professor Malkan. He authorized himself to implement his own agenda

summarily and heedless of the legal consequences.

B. The circumstances of Professor Malkan's wrongful termination could not have

qualified for a grievance under the Collective Bargaining Agreement (CBA).

Professor Malkan did not file a grievance challenging his wrongful termination for the

reason succinctly put at his deposition by SUNY Buffalo’s employment counsel, Mr. Jarvis:

“[t]here cannot be a good cause challenge [under the CBA] to a notice of non-renewal.”

Deposition of James L. Jarvis (Jarvis Dep.) at 61-62 (emphasis added); see Ex. E. Tara Singer-

Blumberg, the UUP labor relations specialist, explained to the Court of Claims in more detail

why she had advised Professor Malkan that a grievance under the CBA was unavailable to him:

¶ 12 The collective bargaining agreement is a contract between

UUP and the State. Mr. Malkan's employment contract is an

individual contract between the University and Mr. Malkan. The

collective bargaining agreement does not address the contents of

appointment letters, but rather only the length of time an employee

must receive before their appointment will end. Therefore, a claim

that the individual contract has been breached cannot be the

subject of a grievance pursuant to the collective bargaining

agreement, except insofar as the issue relates to a failure to abide

by the procedural requirements set forth in the CBA (i.e., time

frame and advance notice).

¶ 13 In the present situation, Mr. Malkan does not claim that

the State failed to abide by the procedural requirements set forth in

the CBA (as distinguished from procedural requirements set forth

elsewhere, e.g., the faculty by-laws of the Law School)….

Affidavit of Tara Singer-Blumberg, Dec. 7, 2012, at ¶¶ 12-13 (emphasis added); Malkan

Disclosures; see Ex. B.

Professor Malkan’s due process claim, moreover, could not have been the subject of a

CBA grievance because “the process that was due” would have had to be determined by the

provisions of the Faculty Bylaws and the Clinical Appointments Policy, about which the parties

34

are still in dispute. Any grievance that crossed this border would have violated the limitation

stated by Article 7, “Grievance Procedure,” of the CBA:

This Article shall not apply to any matter which relates to College

by-laws, policies, operating procedures, or any other form of

guideline by whatsoever name, whether pertaining to a unit,

department, division, school, or any other level of organization of a

College and whether appearing in a College handbook or any other

document, which are developed by professional staff at a College

for the conduct of the affairs of the College or its sublevels of

organization.

Collective Bargaining Agreement, §7.9, at http://uupinfo.org/negotiations/agreement.pdf, see Ex.

K. Professor Malkan, in other words, could not have filed a breach of contract or due process

grievance under the CBA because he did not qualify to be heard in that forum.

C. The stigma caused by Professor Malkan’s dismissal from a 405(c)-protected

appointment could only have been averted by pre-deprivation due process.

“While a fired worker may find employment elsewhere, doing so will take some time

and is likely to be burdened by the questionable circumstances under which he left his previous

job.” Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 543 (1985). This is especially true if the

employee is marked by the additional stigma of suing his previous employer. In circumstances

where his pursuit of post-deprivation due process in state or federal court will brand the

employee with an indelible scarlet letter, pre-deprivation due process must be honored by the

State unless it is impractical or impossible to provide it.

1. An academic career cannot survive the stigma of termination for good cause.

In Board of Regents v. Roth, 408 U.S. 564, 573 (1972), the Supreme Court held that an

at-will employee whose term contract expired was not entitled to pre-deprivation due process.

Justice Stewart, however, added the following caveat. “[T]here is no suggestion that the State …

imposed on him a stigma or other disability that foreclosed his freedom to take advantage of

35

other employment opportunities.” At the time of the Roth case, SUNY Central circulated a

memorandum to all SUNY campuses explaining its impact on faculty term contracts. See SUNY

Vice Chancellor, Memorandum, Non-Renewal of Term Employees, at 3 (July 18, 1972) (non-

renewal might require notice and hearing “if the effect of such decision adversely affected the

person’s good name and reputation or foreclosed his freedom to take advantage of other

available academic employment”). In addition, unlike the plaintiff in Roth, Professor Malkan

was not an at-will employee, but rather held a 405(c)-protected faculty appointment.

Every professor in every ABA-accredited law school knows about Standard 405(c).

Removal from a 405(c)-protected faculty appointment always stigmatizes the fired professor

with the inference that his dismissal must have been warranted by professional incompetence or

personal misconduct. The stigma of termination makes survival difficult for any worker who has

been discharged from his job, but this is even truer in the merit-based academic world. The

“questionable circumstances” under which Professor Malkan departed his 405(c)-protected

faculty appointment at SUNY Buffalo, headed for nowhere, has been a burden on him that

exceeds any possible state interest in denying him a faculty hearing.

In addition to these “questionable circumstances,” the stigma of his wrongful termination

includes the defamations of his character and competence with which Dean Mutua has

maliciously branded him. See Mutua Dep., at 67-68; Mutua PERB testimony (direct) March 31,

2010, at 205-208; Ex. A. Dean Mutua’s malice and intransigence has made it all but impossible

for Professor Malkan to escape this situation.

2. The process of peer review is the safeguard of academic freedom.

The only issue in a faculty hearing for clinical renewal and reappointment is whether

good cause exists for non-renewal and termination. This standard merely requires the professor

36

to establish that he or she has maintained previous levels of competence and personal integrity.

This assessment is a weighty responsibility for the faculty because a dismissal for good cause,

after a clinical professor has already earned 405(c)-protected status, is effectively a lifetime ban

on further employment in the field of legal education.

In addition, the professor has the benefit of a rebuttable presumption in his or her favor

and there are no procedural hurdles to overcome before reaching this mandatory hearing. In fact

there is little or nothing for the professor to do, except respond to requests for information. He or

she relies completely upon the Dean, who is Chair of the CCPR, to initiate the review process,

call the CCPR meeting, and put the matter of reappointment on the agenda for his faculty

colleagues to consider.

Dean Mutua testified, perhaps facetiously, that even though the Faculty Bylaws say that

the CCPR shall make recommendations on reappointment and renewal, they do not say that the

Dean must seek such recommendations – conveniently omitting to mention that he is the Chair of

the CCPR and that it cannot even convene unless he calls it into session.

Q. So is it the Dean's choice just to forgo getting the

recommendation?

A. Well, I mean, I think that there is nothing from what I can see

here in language of that -- 4B4 -- that says that the Dean has to

seek that recommendation. It talks about the faculty

recommending, shall recommend, but it doesn't say that the Dean

shall seek that recommendation.

Q. Okay. So my understanding -- so there's nothing forcing the

Dean to seek that recommendation?

A. There is not.

Q. And --

A. Because it's a recommendation.

Q. Okay.

37

In the next breath, he went on to disparage the entire peer review process as an empty formality

because the Dean has the authority to override faculty recommendations.

A. I mean, if it's a recommendation, why would I be forced to seek

it? But the faculty, you know -

Q. And is there anything in here about any consequences for the

Dean if he doesn't seek the recommendation or do you know of

any?

A. No, there is none.

Mutua Dep., at 97-98; see Ex. A. This statement, of course, contradicts his PERB testimony

where he stated that Dean Olsen’s failure to obtain a recommendation from the P&T Committee,

even a negative one, made Professor Malkan’s reappointment unlawful and “ultra vires.”4

If it were true that a faculty recommendation is a mere formality, then every clinical

professor and every member of the junior faculty would be an employee-at-will, with the Dean

as sole decision maker. In fact, the Dean is required to allow the faculty to make the initial

decision of whether to dismiss a duly-appointed member of the voting faculty, and if the Dean

does not agree, he must state his true reasons – not pretexts – and justify them in a rational

dialogue with the faculty, the employee, and the administration. In this case, Dean Mutua

summarily fired a member of the voting faculty without ever making his true reasons known.

Dean Mutua brushed aside due process and relied on his own closed inquiry, where his

principal sources, the LRW instructors, were under pressure from him, and he himself was under

pressure from the Provost’s Office. He was only going to hear what he wanted to hear. He

admitted, moreover, that, no matter what information the “assessments” had turned up, “it would

have taken a miracle to stop me from terminating him” as legal writing director. Mutua Dep., at

4 The Dean’s testimony that the P&T Committee never voted on a recommendation for or against

reappointment, as explained elsewhere, was itself a lie. See Ewing, Motion for Separate Trials.

38

53; see Ex. A. On March 12, 2008 – in the middle of spring break – Dean Mutua e-mailed

Professor Malkan with an ultimatum: he had twenty-four hours to resign his post as director of

the LRW program or Dean Mutua would remove him without further discussion.

He was asked about why he had done this:

Q. All right. So did you ask him for his resignation?

A. Well, I mean, if you take the e-mail at face value, that’s what

you would think. But the request here is just pro forma. It is not a

real request.

Q. In other words, because you say that if he doesn’t resign – why

did you say that?

A. Because a request for resignation is really a polite way of

telling him that I have fired him.

Q. Why did you do that?

A. Why did I do that?

Q. Yeah.

A. It’s in good form. I was raised well by my mother.

Id., at 59; see Ex. A. Dean Mutua does not seem to include the formality of due process in his

notion of “good form.” It was just a question of whether he would stop short of firing Professor

Malkan altogether. That question received its final answer at midnight on August 31, 2009.

Lastly, it is difficult to see how Dean Mutua’s views about academic integrity and faculty

self-governance can be reconciled with the standards and practices of ABA-accredited law

schools. In reputable institutions of higher education, a “faculty” is defined as a collegial body

that selects its own members on the basis of merit as determined by peer review. See AAUP

Statement on Government of Colleges and Universities, at 140 (1966), available on line at

http://www.aaup.org/file/statement-on-government.pdf (last visited August 18, 2014).

At his deposition, Dean Olsen affirmed this mainstream view by testifying that he considered the

faculty’s “recommendation” to be really an “authorization” that “authorized me to negotiate an

39

employment contract” as long as “the faculty knew what it was voting on.” He also stated that

“[m]y own personal feeling in terms of my role in the Promotion and Tenure process and in this

related process would be to view myself as an advocate for the faculty unless there was some

fatal flaw in the election.” Olsen Dep. at 37; see Ex. G.

D. Professor Malkan did not forfeit his right to pre-deprivation due process either

by filing a "Notice of Claim" within the Court of Claim Act's six-month statute of

limitations, or by the UUP's filing of an improper practice charge within the Taylor

Law's four-month statute of limitations.

Dean Mutua nevertheless maintains that Professor Malkan waived his right to pre-

deprivation due process because of two protective filings that were made by UUP/NYSUT

counsel during the last twelve months of his employment.

First, the UUP/NYSUT, as charging party, filed an anti-union animus claim, alleging an

improper labor practice, with the Public Employment Relations Board (PERB) on December 19,

2008. Second, UUP/NYSUT counsel, with Professor Malkan named as claimant, filed a Notice

of Claim on January 28, 2009.

What Dean Mutua neglects to mention is that the statute of limitations for an improper

practice charge under the Taylor Law is four months from the date of the retaliatory act, and that

the statute of limitations for a damages claim in the Court of Claims is six months from the

breach of contract. Accordingly, these two filings did not amount to due process protections

themselves, but rather were procedural measures required to preserve Professor Malkan’s right to

post-deprivation due process if, before September 1, 2009, he still had not been received a

contract renewal or pre-deprivation due process that met federal standards.

According to Dean Mutua’s interpretation of federal law, Professor Malkan would have

had to choose between abandoning his efforts to obtain a faculty hearing, or missing the state

40

limitations deadlines, in the hope that Dean Mutua would relent before the end of the academic

year and allow the faculty to hear his grievance or vote on his non-renewal. In other words, as

early as four months after he received the non-renewal letter, Professor Malkan would have had

to begin forfeiting his state post-deprivation remedies in order to stay in the federal pre-

deprivation game. These forfeits would be jurisdictional and irrevocable, so Professor Malkan

on September 1, 2009, would have been left entirely without access to these expired remedies.

E. Neither a breach of contract claim in the Court of Claims nor an improper

practice charge before the Public Employment Relations Board (PERB) could

represent adequate post-deprivation due process in this case.

The question of whether an adequate post-deprivation remedy is available depends on the

question of what process is due. “A claim to a predeprivation hearing as a matter of

constitutional right rests on the proposition that full relief cannot be obtained at a postdeprivation

hearing.” Mathews v. Eldridge, 424 U.S. 319, 331 (1976); cf. Krukenkamp v. State University of

New York, No. 09-cv-4933, 395 Fed. Appx. 747, 748 (2d Cir. Oct 6, 2010) (finding pre-

deprivation due process unwarranted in a case where the settlement agreement in question

forfeited the professor’s interest in continued employment); Dube v. State University of New

York, 900 F.2d 587, 599 (2d Cir. 1990) (dismissing claim where a professor was denied tenure

after every stage of the “established contractual procedures” had been followed).

Dean Mutua argues that the two post-deprivation remedies pursued by Professor Malkan

gave him all the process he was due. In fact, neither satisfied his right to due process.

1. The Court of Claims failed to protect Professor Malkan’s rights.

There is no need to digress about the Court of Claims case except to say that the court

never issued a substantive decision. The formalistic pleading requirements of the N.Y. Court of

Claims Act made it impossible for Professor Malkan to be heard on the merits of his claim. More

41

importantly, former-Judge Jeremiah Moriarty, did not come to his decision dismissing both

Notices of Claim – even though the purpose of the notice requirement had been fulfilled twice

over – until more than four years after NYSUT filed the initial Notice of Claim. It would

belabor the point to explain why this flawed and torpid process was not an adequate substitute

for the pre-deprivation due process to which Professor Malkan was entitled under the Faculty

Bylaws and Clinical Appointments Policy.

2. The Public Employment Relations Board failed to protect Professor Malkan’s rights.

If, as the evidence shows, Dean Mutua leveraged the credibility of his office in his

testimony on March 31-April 1, 2010 to perpetrate a fraud on the court and thereby obstruct the

due process of law, then it is, by definition, impossible for the PERB hearing to represent an

adequate post-deprivation remedy. What that hearing represents is a miscarriage of justice.

In addition, ALJ Kenneth S. Carlson did not issue his decision until November 8, 2012,

and the holding of that decision – that Dean Mutua was not motivated by anti-union animus – is

so distant from the issues of this case as to be irrelevant.

Finally, the IP charge had been filed on November 19, 2008. See Ex. J. The ALJ’s

decision was issued after an interval eleven days short of four years. It would, again, belabor the

point to explain why this flawed and torpid process did not provide an adequate substitute for the

faculty hearing that was withheld by Dean Mutua in 2008-2009.

3. An Article 78 proceeding was neither available nor required.

Finally, Dean Mutua points to the possibility of post-deprivation due process through an

Article 78 proceeding in state court. See Mutua Mem., at 6. Professor Malkan, however, had

already filed a Notice of Claim in the Court of Claims. The issue in an Article 78 proceeding

42

would have been whether Dean Mutua’s decision to break the Contract was arbitrary and

capricious, while the issue in the Court of Claims was simply whether the Contract had been

broken. The latter question encompassed the former and was more direct. For this reason, it is

most unlikely that these two cases would have been allowed to proceed in tandem. Moreover,

recourse to the post-deprivation Article 78 remedy is only required by federal law if the

constitutional violation resulted from the “random and unauthorized” acts of a state official,

which, again, is not the case here. Cf. Rivera-Powell, 470 F.3d at 466.

F. Professor Malkan is not required to prove that if he had received the process he

was due, the faculty would have recommended the renewal of his appointment and

the Dean would have endorsed it.

Dean Mutua claims that Professor Malkan needs to establish what would have been the

result if he had received the process he was due. See Mutua Mem., at 6. This would be pointless

because there is no harmless error doctrine in due process jurisprudence. The only defense for a

due process violation is that no process was due. Any discussion of such “what ifs,” moreover,

would be speculation about events that never happened because the Dean prevented them from

happening. Such speculation, finally, would lead to the conclusion that Dean Mutua was driven

by his well-justified apprehension that the faculty would have rejected his request to endorse

Professor Malkan’s wrongful termination.

The “good cause” for termination stated by Dean Mutua was that Professor Malkan’s

instructional position had been eliminated when the name of the Law School’s first-year legal

writing course changed from “R&W” (Research & Writing) to “LAWR” (Legal Analysis,

Writing & Research) and came under the administrative umbrella of the new “Vice-Dean for

Legal Skills.” These are both variations on the generic name for the course “LRW” (Legal

43

Research & Writing). This, Dean Mutua claimed, was the “material modification or termination

of entire clinical program” that qualifies as “good cause” under ABA Standard 405(c).

In fact Dean Mutua, in a July 11, 2008 letter to then-SUNY Buffalo Employment

Counsel Lew Rosenthal and Director of Employee Relations Jeff Reed (copied to Vice-Provost

Lucinda Finley), admitted that this “loophole” in ABA Standard 405(c) was nothing but a pretext

to prevent a discussion in the CCPR that would require Dean Mutua to present his evidence of

good cause and allow Professor Malkan to respond to the Dean’s attacks on his competence and

character. He wanted the letter to be “airtight” so that he could shut down any attempt by

Professor Malkan to defend himself. Jarvis Disclosures, see Ex. E. During the course of the

next academic year, however, Dean Mutua evidently realized that the best way to deal with

Professor Malkan would be to simply declare that he was “out of category” – that is, “an

imposter” masquerading as a member of the faculty – and deny that he had any due process

rights at all.

For one thing, the defamations that he and then-Vice-Dean Gardner had orchestrated

during that semester would almost certainly have come to light once the matter of Professor

Malkan’s dismissal was opened, giving Professor Malkan knowledge of what had been said

about him and the opportunity to defend himself.

For another, even if Dean Mutua could suppress that discussion, the pretext stated in the

non-renewal notice could not possibly have survived the faculty’s scrutiny. If an entire program

had indeed been terminated and any “academic or professional employee” other than a

temporary appointee was displaced, the University would have had to follow the procedures for

“retrenchment” mandated by the Collective Bargaining Agreement. See Collective Bargaining

Agreement, at http://uupinfo.org/negotiations/agreement.pdf (last visited June 28, 2014); Ex. K

44

(emphasis added). In addition, under the principles of academic employment recognized by all

reputable universities, Professor Malkan should have been offered any vacant position on the

faculty for which he was qualified, or severance salary adjusted to his length of service. See

AAUP Regulations on Tenure and Academic Freedom, 3-4 (1957) at,

http://www.aaup.org/NR/rdonlyres/E45D7D3B-00F1-4BC0-9D0A-322DF63A1D07/0/RIR.pdf.

When Dean Mutua signed the non-renewal notice, on August 28, 2008, the LRW

program had not been terminated, and, under ABA Standard 302(a) – the legal skills standard –

could never be terminated. In fact no changes at all had been made to the LRW program. Any

changes to the program would have had to be presented by the Academic Policy and Planning

Committee (the “APPC”) to the full faculty for a vote before they would be implemented.

That “discussion,” in fact, did occur, but not until April 22, 2009, when the faculty approved

placing the existing LRW program under the administrative umbrella of what would be

designated as the “Skills Program,” which, in addition to first-year LRW, would include a menu

of other skills-based upper-level courses. Malkan Disclosures; see Ex. B.

It is not surprising that Dean Mutua refused to allow the faculty to vote on his pretext for

Professor Malkan’s termination, in view of the evidence in this case, including:

(1) the first-year course schedules that showed exactly the same section of exactly the

same course – R&W section L4 – taught in fall 2008 by Professor Malkan, was being taught in

fall 2009 by a replacement teacher named Patrick Long (see Ex. B);

(2) the April 15, 2009 memo from the APPC to the faculty regarding compliance with

the ABA’s legal skills standard (see Ex. B), and the September 2009 UB Law Brief article

featuring Vice-Dean Charles P. Ewing (see Ex. B), both of which emphasized that the transition

from “R&W” to “LAWR” was continuous and evolutionary. The APPC’s legal skills proposal

45

advised that it “did not propose the creation of any new programs,” and Vice-Dean Ewing was

quoted as saying that “the program I have inherited is already solid and strong… my goal is to

make it one of the best in the country” (emphasis added).

These law school documents and authorized statements from senior faculty members,

appointed to their assignments by Dean Mutua himself, are evidence that his rationale for

terminating Professor Malkan – the elimination of his teaching position due to the replacement of

the “Research & Writing” program by the “Skills” program – was false.

This evidence further establishes that nothing had been “terminated” in the Law School

except Professor Malkan’s employment, and that the only thing “new” about the “new” legal

writing program was that Professor Malkan no longer taught in it.

Even if the LRW program had been “materially modified” on August 28, 2008, or at any

time during the last year of Professor Malkan’s contract term, it is unlikely to the point of near-

certainty that the faculty would have found good cause to terminate his employment. This is

because the Law School still teaches first-year legal writing in the same standard format

(objective writing/legal research in the fall and persuasive writing/oral advocacy in the spring),

and Professor Malkan is fully qualified to teach any conceivable first-year “legal research and

writing” or “legal analysis, writing and research” course, indeed, far more so than any of the

instructors who were retained or newly hired. He is also qualified to teach most courses in

intellectual property that the Law School might need to staff with a full-time faculty member.

Finally, had the faculty been consulted, it would have had to take into account Professor

Malkan’s Contract, dated October 16, 2006, which specifically contemplated the possible effect

of Interpretation 405-6 on his employment status.

46

A change in the structure or staffing of the law school’s research

and writing program will not equate with “for good cause” to

terminate or not renew your contract since your contract as Clinical

Professor is separate from your administrative appointment as

Director of Research and Writing. Should your appointment as

Director of Research and Writing end, you would still maintain

your position as Clinical Professor. In that capacity, without the

administrative workload of Director of Research and Writing, you

would be expected to teach two courses each semester as per the

normal teaching load of all faculty. Those courses could be

writing courses, IP courses, or whatever teaching load you

mutually agree upon with the Dean and Vice Dean for Academic

Affairs at the time.

Malkan Disclosures; see Ex. B. Therefore, Professor Malkan could only be denied the right to

continue teaching two courses per semester at the rank of Clinical Professor, not limited to the

first-year legal writing program, if the Dean was prepared to break his contract – which,

unfortunately, is exactly what the Dean was prepared to do.

Again, however, it is unlikely to the point of near-certainty that the faculty would have

jeopardized its own integrity and job security by sanctioning the breach of an employment

contract by Dean Mutua based on a demand by Vice-Provost Lucinda M. Finley to retroactively

reverse a two-year old decision of the P&T Committee.

III. DEAN MUTUA IS NOT ENTITLED TO QUALIFIED IMMUNITY BECAUSE

NO REASONABLE PERSON COULD POSSIBLY HAVE BELIEVED THAT HIS

MALICIOUS AND CRIMINAL MISCONDUCT WAS LEGALLY JUSTIFIED.

Dean Mutua’s dishonesty and abuse of power resulted from his intention to inflict injury

on Professor Malkan as well as to intimidate and marginalize the faculty. His malicious and

criminal misconduct is unprecedented in the Dean’s Office of a state-sponsored law school.

Dean Mutua’s refusal to cooperate with Vice-Dean Ewing’s attempt to “adjust” the

grievance and his intentional violation of the Law School’s policies are offenses that would

47

warrant disciplinary action against a student. See Code of Student Conduct, at 2, available at

http://www.law.buffalo.edu/content/dam/law/restricted-assets/pdf/registrar/ap/conduct13.pdf

(last visited August 18, 2014).

The fact that completely precludes immunity is that Dean Mutua committed perjury at a

hearing of the Public Employment Relations Board on March 31-April 2010 regarding facts that

he himself claimed were dispositive. He succeeded in causing a miscarriage of justice. It would

have been impossible for the Hearing Officer to have ruled in the University’s favor if he knew

that the Dean was lying under oath. Dean Mutua repeated the same perjury, with added

embellishments, at a deposition held under the auspices of this Court on December 19, 2013.

There is no case on record in the history of the federal court system where a perjurer has been

granted qualified immunity by a federal judge in the matter in which he committed his perjury.

Dean Mutua, in addition, consulted SUNY legal counsel on the question of whether a

summary dismissal of Professor Malkan would be lawful. The response he received told him

that there were “risks.” The only advice he got from counsel was that the non-renewal notice

itself was of dubious legality. He did not ask the follow-up question of whether sending the non-

renewal notice and then terminating Professor Malkan without due process at any time during

the final year of his employment was within his lawful authority as Dean.

From: Jarvis, James

Sent: Wednesday, August 20, 2008 4:47 PM

To: Mutua, Makau

Cc: Finley, Lucinda; 'Lewis.Rosenthal@suny.edu'; Reed, Jeffrey

Subject: Jeffrey Malkan

Dear Dean Mutua,

I am following up on earlier discussions involving Jeffrey Malkan.

You have communicated your desire to issue a non-renewal notice to

Professor Malkan.

48

I have discussed this matter with Jeffrey Reed, Lewis Rosenthal,

and Lucinda Finley. There certainly are risks attendant to

potential litigation if a non-renewal notice is issued in this

case, and you should feel free to contact me to discuss these if

you wish. Should you decide to go forward with non-renewal, I am

attaching a revised draft notice for your use, which was written

in consultation with Mr. Rosenthal. Please note that a non-renewal

notice must be issued by August 31, 2008, to be timely.

James L. Jarvis, Jr.

Assistant Vice President

Human Resources

University at Buffalo

120 Crofts Hall

Buffalo, NY 14260-7022

(716) 645-5000, ext. 1287 (716) 645-2724 (fax)

jljarvis@buffalo.edu<mailto:jljarvis@buffalo.edu> <http://www.ubbusiness.bu= ffalo.edu/>

See Jarvis Disclosures; Ex. E (emphasis added).

The Court, when considering the gravity of this situation, should also take into account

that President Satish K. Tripathi refused to sit for a deposition in this action – just as Dean Mutua

had refused to cooperate with this Court’s mandatory ADR – and instead submitted a sworn

affidavit, dated December 5, 2013, that claimed he knows nothing about anything.

The President did not explain how he could have forgotten that he had personally

received a PDF copy of the Hearing Officer’s decision, or why he had congratulated Dean Mutua

on his victory in a lawsuit that was so inconsequential that no one had ever before mentioned it

to him.

-----Original Message----- From: mutua@buffalo.edu [mailto:mutua@buffalo.edu] Sent: Thursday, November 15, 2012 10:34 AM To: Tripathi, Satish; UB Provost Subject: Fw: U-28826 (UUP v. SUNY Buffalo) ALJ Decision.PDF Satish, Chip:

49

See judgment of the Labor Board -- Jeff Malkan has lost the case. The judge's opinion is very unequivocal. Good news. Makau Mutua Dean SUNY Distinguished Professor Floyd H. & Hilda L. Hurst Faculty Scholar SUNY Buffalo Law School The State University of New York 319 O'Brian Hall Buffalo, New York 14260 Tel: (716) 645-2052 Fax:(716) 645-5968 SSRN: http://ssrn.com/author538742 Dear Makau, Great news! Congratulations. Best, Satish ******** Satish K. Tripathi President University at Buffalo, SUNY 501 Capen Hall Buffalo, NY 14260 Phone: 716-645-6269 Fax: 716-645-3278

Jarvis Disclosures; Ex. E; see Tripathi Dec.; Ex. K. President Tripathi’s affidavit further stated

that Professor Malkan’s attempts to contact him were unsuccessful because his staff and legal

counsel intercept his correspondence. (He gave no explanation of what they do with it.) Id.

Since the date of his affidavit, and despite the new evidence that has come to light, President

Tripathi has taken no action to deal with Professor Malkan’s allegations that the integrity of the

Law School has been compromised by criminal misconduct at the highest levels of his

administration. Makau W. Mutua still occupies the Dean’s Office under his protection. This is

not only a betrayal of the public trust, but shows a lack of respect for the legal profession itself.

Finally, Professor Malkan subpoenaed the dossier of his P&T Committee hearing that

had been prepared by then-Vice-Dean Mangold in the spring of 2006. Dean Mutua was asked at

his deposition why he had failed to produce the dossier and associated personnel records, which

50

he admitted were essential documents, and he answered “[t]hey apparently disappeared into thin

air.” Mutua Dep. at 172; see Ex. A (emphasis added). He added that former-Dean Olsen and

former-Vice Dean Mangold must have vandalized the Dean’s personnel files before he took

office in order to cover-up their attempts to subvert the faculty’s integrity. Id.

It is difficult to see in the evidence any basis to conclude that a reasonable person in Dean

Mutua’s position could have believed that his malicious misconduct was legally justified and that

he would be protected, in the event of a lawsuit, by qualified immunity.

CONCLUSION

For the foregoing reasons, Professor Malkan respectfully requests this Court to deny

Dean Mutua’s motion for summary judgment, to grant partial summary judgment to Professor

Malkan on the issue of liability, to schedule for trial the issue of damages, and to grant him such

other and further relief as the Court deems just and proper.

Dated: August 29, 2014

Carle Place, New York

By: _________________________________

LEEDS BROWN LAW, P.C.

Attorneys for Plaintiff

One Old Country Road, Suite 347

Carle Place, New York 11514

(516) 873-9550