Former UB law professor proceeds with federal suit against UB Law School

By LISA EPSTEIN
On April 28, 2013

A former law school professor has filed a federal lawsuit against UB's Law School Dean Makau Mutua for firing him without cause and for breach of contract.

Jeffrey Malkan, who taught from 2000-09, claims he was unjustly fired in 2009 and has been unable to get a job since because Mutua has refused to write him a letter of recommendation. He is asking for $1.3 million from the state in back and front pay in the Court of Claims and reinstatement plus back pay from the public employment board. 

Mutua declined comment due to pending litigation in the case.

Malkan was hired in 2000 as a clinical associate professor and director of the Legal Research and Writing program (LRW). In 2006, Malkan was promoted to professor and entered into a three-year employment contract, under SUNY policy. American Bar Association (ABA) accreditation standards require full professors have five-year contracts. Following ABA standards, Malkan's contract included an automatic two-year extension.

"To be terminated for cause from a tenured position is the end of your career," Malkan said. "The cause that [Mutua] gave in the letter where he terminated me, he said the reason why he was terminating my employment was that my job no longer exists because he's terminating the entire legal program. The only thing they changed about the legal writing program is instead of calling it the Legal Research and Writing, now they call it Legal Analysis Writing and Research. Otherwise, it's the same exact course and the same teachers. Everything is the same - the same curriculum."

The suit alleges that after Mutua became dean of the law school in 2008, Malkan was illegally fired and Mutua violated Malkan's right to due process under the 14th Amendment and barred access to a mandatory faculty review procedure. 

The lawsuit also names Charles Ewing, the current vice dean for academic affairs, who allegedly worked in conspiracy with Mutua to block Malkan from the mandatory faculty grievance process.

Malkan also claims Mutua did not allow the faculty to vote on his dismissal, as stated in his contract, which violated due process. Malkan said there were no legal grounds for his termination.

In emails obtained by The Spectrum sent to Mutua on Oct. 19, 2010, three tenured faculty members requested a special faculty meeting on Oct. 26, 2010, which would have been up for the consideration of a vote of no confidence in Mutua as dean of the law school. President John B. Simpson and Provost Satish Tripathi - who both held those positions at the time - asked the faculty to attend the meeting that would be held on Oct. 22. 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.

According to an anonymous source in the law school, the faculty never voted on the question of no confidence in Mutua but voted to put it on the agenda for the next meeting and discussion. This triggered a meeting with Tripathi and Simpson, who then said the dean "served at their pleasure indefinitely and, in effect, that they were not interested in further discussion with the faculty about any leadership concerns," according to the anonymous source.

"In response to our request for specific suggestions, some members of the law faculty have suggested that the appointment of Dean Mutua be terminated 'no later than June 2011,'" Simpson and Tripathi wrote in the email. "With this communication, we wish to indicate to you that the dean has our full confidence and support. During Dean Mutua's tenure, the Law School has made substantial progress and we believe that the dean has positioned the School well to continue to serve, as do all deans at the pleasure of the provost and president, or until he decides to retire from the deanship."

Malkan filed an improper practice charge with the Public Employment Relations Board (PERB), claiming that following his notice of dismissal, UB denied Malkan renewal of his appointment as clinical professor.

On Nov. 15, the state filed an answer denying any violation of the law and dismissing Malkan's claims. The PERB hearings were held on Nov. 17, 2009; March 31, 2010; and April 1, 2010.

In the PERB decision released after the Nov. 15 ruling, Malkan's initial appointment was for a term of three years in which he taught a number of courses while holding his position as director of LRW. None of them were clinical courses. Former Dean of the Law School Nils Olsen then offered Malkan a second three-year contract following what Malkan called a "perfunctory review."

According to the court, in April 2006, the faculty undertook a review of Malkan's performance in order to determine whether they would offer Malkan a permanent appointment for his position as director of LRW.

Mutua testified that he was at the April 2006 faculty meeting in which the faculty discussed whether Malkan should continue as director and be promoted from clinical associate professor to full clinical professor.

Mutua testified that during the meeting, the faculty discussed whether Malkan's initial appointment as clinical associate professor was appropriate. Mutua then testified that there was a heated discussion on whether Malkan should remain the director of LRW. Mutua claimed he then recommended Malkan be terminated immediately and the program be removed and restructured.

The faculty did not vote on Malkan's faculty appointment at that time but resolved they would recommend to Olsen that Malkan's appointment as director of the program be continued for one year. The faculty then resolved to look for a new director and asked Olsen to appoint a committee to study and restructure the program.

The PERB case has currently been submitted to the Board in Albany but has not been scheduled for an oral argument. Malkan said the federal court rules in the Western District of New York require mandatory mediation before the case can go to trial.

On March 1, mediation was held. Malkan said he was there with his attorneys, along with Ewing, SUNY Counsel Jim Jarvis, Esq., and Assistant Attorney General David Sleight.

According to Malkan, Mutua did not show up to the mediation, claiming that he had more important business elsewhere. Malkan claims this is a violation of the rules.

Malkan also claims the attorney general asked for time until March 21 to come back with a settlement offer but later asked for an extension until April 2. The attorney general informed Malkan that UB declined to make any settlement offer, saying the case will be going to trial in federal court before the end of 2013.

"This is disappointing, of course, because over the five years of this dispute SUNY Buffalo has refused to make any settlement offer at all, not one dollar, and has blocked me from obtaining a teaching job at any other law school," Malkan wrote in an email. "I'm also afraid that the trial in federal court will be harmful to the law school's reputation because the facts that will be revealed will not be flattering."

In an article published by the New York Law Journal in Oct. 2012, Federal Judge Richard Arcara denied the motion to stay the case, holding the defendants to a higher standard. According to Arcara's decision, Mutua removed Malkan as director of LRW and notified Malkan six months later that his contract as clinical professor would expire at the end of the 2008-09 school year, without renewal.

Malkan alleged Mutua refused to discuss his dismissal with him, the faculty grievance committee and the committee chairman. Malkan also claims defendant Ewing refused to take the matter before the faculty. 

On Oct. 3, 2012, the Federal District Court issued an order denying Mutua's motion to dismiss the case.

Malkan claims that during Mutua's testimony in PERB, Mutua lied under oath about the events leading up to his removal as director of LRW.

"Makau Mutua testified to the promotion of tenure committee, which is the entire tenured faculty, that back when I was promoted to full clinical professor on April 28, 2006, that they voted to terminate my employment on one year's notice, and that was a lie," Malkan said. "He gave his testimony on March 31, and on cross examination by the union attorney on April 1. This is prepared, premeditated testimony. The dean of the law school went into court and committed perjury."

During the last two years, Malkan has attempted to contact Tripathi and Provost Charles Zukoski, sending letters asking Tripathi to investigate Malkan's claims that Mutua committed perjury in the PERB hearing.

"It would be serious if he was the dean of the pharmacy school or the dean of the dental school," Malkan said. "But this is the dean of the law school, which means he's also a member of the bar. He's an officer of the court, and he's responsible for the education of hundreds of students. This is such a serious corruption of the integrity of the law school."

Malkan said after he sent the letters to Tripathi, asking him to investigate the claims and find out if Mutua did lie under oath in the PERB hearing, Tripathi threatened Malkan and his union lawyer.

"I'm asking President Tripathi, please, before you go forward with this lawsuit, would you please do your minimum due diligence and find out what really happened?" Malkan said. "His response has been to have the attorney general threaten me and my union lawyer with sanctions for contacting him ex parte. I did absolutely nothing wrong by contacting him. I sent him 13 pages of transcript testimony, Mutua's sworn testimony at PERB, and I also sent him an email."

 Malkan believes Tripathi is simply turning a blind eye on the things Malkan sees within the law school. Malkan also believes Tripathi has an obligation to look into situations like this when they come up, instead of ignoring it all together.

"I feel like this is another Penn State situation developing," Malkan said. "You can't cover up a crime from another member of your administration. This has been going on for two years, with me begging [Tripathi] to answer my question. He's responsible for the conduct of officers of his administration. He's acting as if the law doesn't apply to him, which is exactly what [Graham] Spanier did at Penn State. And where is Spanier now? He's been indicted on perjury and obstruction of justice just because he refused to listen to the evidence that was coming in about the crimes that were being committed on his campus by university administrators."

 Malkan said that when questions about his job as director first came into question, he tried to line up a new position at a different school. In May 2009, while Malkan was still officially working at the law school, he had secured a job at the Charlotte School of Law in North Carolina.

 Malkan found the school couldn't vote on his potential position there because Mutua was interceding to withdraw his candidacy before it could go to the faculty.

Malkan said he's had interviews at employment conferences, but once he explains the circumstances of how he was terminated, nobody will go forward with an interview. He has been unemployed since 2008.

 

Email: news@ubspectrum.com


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