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Law school Dean Makau Mutua resigns

Dean Mutua faces allegations of lying under oath in federal court

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Law school Dean Makau Mutua has resigned. The resignation comes amid allegations that he lied in federal court and in a state administrative proceeding.

The alleged lying under oath stems from a 2011 case filed by Jeffrey Malkan who says the dean wrongfully terminated his contract as a clinical professor. Malkan had signed a contract in November 2006 that stated he could only be fired for cause in accordance to the law school accreditation standard. Two months after becoming dean, Mutua terminated the contract.

The suit also alleges that Malkan was denied due process under the 14th Amendment.

Mutua, who has been dean for seven years, will step down officially on Dec. 19, but he will continue to teach at UB as a SUNY Distinguished Professor and Floyd H. and Hilda L. Hurst Faculty Scholar. Mutua is a Harvard graduate and a well-known leader in international human rights.

Provost Charles Zukoski sent an email to faculty Monday announcing the resignation. He did not mention the lawsuit in the email, but focused on Mutua’s accomplishments as dean, which include recruiting 22 new faculty members, offering more experiential learning opportunities for students and fundraising $23 million.

“I decided to step down because it was the right time: A seven-year tenure is twice as long as the typical tenure for a law dean, and I’ve accomplished what I set out to do,” Mutua said in a written statement to The Spectrum.

Faculty and students interviewed by The Spectrum offered tepid to scathing critiques of Mutua’s tenure and many students insist they have never seen Mutua on campus nor interacted with him. In October 2010, the law school faculty attempted to hold a vote of no confidence in Mutua, but the attempt was dismissed by then President John B. Simpson and then Provost Satish Tripathi, according to email correspondence obtained by The Spectrum in 2013.

Like many law schools across the country, UB’s law school has been retrenching in recent years and in March, the school announced its plans to shrink its incoming class from 200-225 students to fewer than 200 and to reduce its faculty from 48 to 40.

The Malkan case began in 2011 and names both Mutua and law professor Charles Ewing, who served as head of the law school grievance committee that heard Malkan’s complaint. The federal case, in U.S. district court, is now at the stage of considering summary judgment, which involves whether the case can go forward to trial. The newest development in the case came in August when Ewing filed a motion to have his case separated from Mutua’s. In the motion, Ewing’s lawyers argue Ewing was an “innocent bystander,” who got caught in the disagreements between Malkan and Mutua.

Therefore, Ewing has asked the court to separate his case from Mutua’s “to avoid foreseeable ‘spill-over effect’ and indelible prejudice,” against him in light of the false testimony allegations against Mutua.

Ewing could not be reached for comment, but on Tuesday Malkan told The Spectrum Ewing’s involvement was “marginal” and that “he wasn’t responsible for the wrongdoing.” Malkan said his lawyers have “put papers in to dismiss [Ewing] from the lawsuit.”

“I’ve been so frustrated for the last couple of years,” Malkan said. “I couldn’t believe Mutua was still in the dean’s office with these allegations over his head. There’s no way a dean can function until his name is cleared.”

The motion to separate the trials highlights the significance of the perjury allegations, which stem from testimony Mutua gave regarding a faculty vote on Malkan’s promotion to clinical professor at a Committee on Clinical Promotion and Renewal (CCPR) meeting. Seven faculty members testified that the vote took place. Mutua said under oath the vote did not take place, rather that it was a vote to retain Malkan as a director of the Research and Writing program.

Mutua also testified former UB President William Greiner, who was a member of the law school faculty, spoke at the meeting. UB law faculty members testified Greiner was not at the meeting.

Malkan said that at the time of the 2006 CCPR meeting, Greiner was sick and not regularly attending faculty meetings. Greiner died in 2009.

When Mutua was asked to produce Malkan’s promotion dossier – an official document a person up for promotion needs to prepare – for the court, the dean said it had disappeared. He said he didn’t know what happened to it and it was missing when he took over the dean’s office.

Malkan said Tuesday it was an “obstruction of evidence.”

“It’s unthinkable that a dean of a law school would commit perjury and subvert the process and actually produce a miscarriage of justice,” Malkan said.

The university said it does not comment on pending litigation.

The Spectrum reached out to numerous law professors and students, most of whom declined to go on the record about the atmosphere of the law school and the allegations against Mutua.

However, The Spectrum has pieced together a paper trail that indicates discontent, which includes the October 2010 attempt by three tenured faculty members to hold a meeting to request a vote of no confidence in Mutua.

Former President John B. Simpson and then Provost Satish Tripathi asked the faculty to attend the meeting that would be held on Oct. 22, according to emails obtained by The Spectrum in 2013. Mutua declined the meeting despite receiving a request signed by three members of the faculty in accordance with faculty bylaws.

On Oct. 25, following a faculty meeting on Oct. 22, Simpson and Tripathi sent an email to the faculty addressing the meeting regarding Mutua.

Law faculty said they never took a no confidence vote in Mutua, but voted to put the matter on the agenda again. It triggered a meeting with Tripathi and Simpson, who told the faculty the administration was not interested in their concerns about the law school leadership, according to professors in the law school.

UB policy states that deans should be reviewed every five years. Mutua was dean for six and a half years before a review was initiated, according to emails obtained by The Spectrum.

In February 2014, UB and SUNY Distinguished Professor of Chemistry Frank Bright, who headed Mutua’s review committee, sent an email to the law school faculty saying a “five year review” of Mutua was beginning.

Mutua began as interim dean in late 2007 after Nils Olsen stepped down. A press release announced his appointment as dean in May 2008. Some law school professors question the process that led to Mutua’s appointment because he didn’t go through a full and regular search process, according to law school faculty. Tripathi appointed him after a failed national search. But UB Spokesman John Della Contrada said, “there was nothing out of the ordinary about the search.”

The results of Mutua’s decanal review, which was completed around May 2014, are confidential, according to Bright.

However, Provost Zukoski sent out an email to those who participated in Mutua’s review on July 1. The letter outlines the law school’s accomplishments under Mutua, including improving the number of law graduates who pass the bar, improving infrastructure and increasing fundraising efforts.

The letter states that Zukoski discussed the review results with Mutua and alludes to concerns of faculty members.

“Through the decanal review process, Law School faculty and staff have raised issues of concern to me as provost,” Zukoski wrote. “These issues have strained relationships within the school and created tension around leadership and unit cohesion.”

The letter does not indicate if the decanal review process had an effect on Mutua’s position as dean. Della Contrada said “input by faculty, staff, students and members of the community is a vital part” of the decanal review process.

Malkan is suing for $1.3 million in damages and said he has essentially been blacklisted in his profession because Mutua not only fired him, but also would not write him a letter of recommendation.

“The university always settles these cases and no one could understand why after the first six months, ‘Why couldn’t they just let you go?’” Malkan said. “I would have just left. Just give me one semester salary like some little severance pay and a letter of recommendation, like a letter of good standing, and I could have found another job and I would have been out of here.”

Malkan said he views Mutua’s resignation as a relief, and said he was surprised Mutua was allowed to remain dean with lying under oath allegations lingering.

In a university release, Zukoski praised Mutua for what he has accomplished in his time as dean.

“He has led the school through a nationally challenging time for legal education, while strengthening the school’s programs and faculty and advancing UB’s teaching, research and engagement missions,” Zukoski said.

Tripathi expressed his thanks to Mutua, who has been in the law school since 1996, and appreciation for his service to the university in the same release, stating the law school is “well positioned to achieve even greater prominence in legal education and scholarship.”

James Milles, a law professor who teaches legal ethics at UB, said those accomplishments Zukoski pointed out in the letter to faculty would not have happened without the hard work of the entire faculty.

“We’ve got a solid and dedicated group of faculty and staff without whom all those accomplishments would not have been done and they will continue to do great things in the future,” he said.

Mutua, a native of Kenya, is active in Kenyan politics and writes political columns for Kenyan news sites. He received a doctor of juridical science degree in 1987 from Harvard Law School, he served on the Iran tribunal hearing in 2012 and was elected vice president of the American Society of International Law in 2011.

Mutua’s position as dean and the inherent credibility that comes with it has allowed him to serve on the Erie Canal Harbor Development Corporation and Gov. Andrew Cuomo’s Moreland Commission, which was supposed to root out political corruption, but was shut down early.

Sam Benatovich, a second-year law student who has never met the dean in person, said the allegations Mutua is facing are troubling. He said the law school’s program focuses on integrity and students have to take a class on ethics in the legal profession.

If the allegations prove to be true, Benatovich said, “the dean of a law school can’t flagrantly disregard the foundation of our legal system. It sends mixed messages as an educator. It’s not just wrong, but downright repugnant to create the next generation of lawyers while flaunting your lack of respect for the legal standards.”

email: news@ubspectrum.com

This article has updated to clairfy the difference between allegations and charges.


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