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From: Jeffrey Malkan (jeffrey.malkan@outlook.

com)
Sent: Tue 5/20/14 11:30 AM
To: jljarvis@buffalo.edu (jljarvis@buffalo.edu); jereed@buffalo.edu (jereed@buffalo.edu)
Cc:
robert.ruggeri@suny.edu (robert.ruggeri@suny.edu); Baker, Jessica (jbaker4@buffalo.edu);
jrnewton@buffalo.edu (jrnewton@buffalo.edu); cewing@buffalo.edu (cewing@buffalo.edu);
jgard@buffalo.edu (jgard@buffalo.edu); finleylu@buffalo.edu (finleylu@buffalo.edu);
gbinder@buffalo.edu (gbinder@buffalo.edu); svm@BUFFALO.EDU (svm@buffalo.edu); Dianne
Avery (averydianne@gmail.com); Rebecca French (rebeccarfrench@me.com); Tara Singer-
Blumberg (tsinger@nysutmail.org); Marilyn Raskin-Ortiz (mraskin@nysutmail.org);
ubprovost@buffalo.edu (ubprovost@buffalo.edu); steinfel@buffalo.edu (steinfel@buffalo.edu);
lynn.vance@goer.ny.gov (lynn.vance@goer.ny.gov); mcclusk@buffalo.edu
(mcclusk@buffalo.edu)


Dear Mr. Jarvis and Mr. Reed,

Ive never undertaken a study of the policies and procedures of Employee Relations, so maybe I'm
under some misconception about your duties and powers, but this is my summary of what happened
at the inception of this scandal:

1. On July 11, 2008, Mr. Reed received a message from Dean Makau W. Mutua asserting, among
other things, that I had created a hostile work environment, that I was abusive toward other faculty
members, and that I represented a threat of physical violence to himself and others in the building.
(See below.)

2. Dean Mutua also wrote that my Clinical Professor's contract signed by Dean R. Nils Olsen on
October 19, 2006 was "ultra vires" because it provided tenure-like protection, i.e., presumptively
renewable term contracts with a good cause standard for termination and due process rights as
specified by the Faculty Bylaws.

3. Finally Dean Mutua informed you that he wanted to fire me for business reasons because he
thought that I was making too much money.

4. Dean Mutua concluded, however, that substantiating these fabricated reasons might be
difficult and the reasons themselves might be illegal so he told you that he would like to proceed on
the pretext that the legal writing program had been terminated.

My common-sense understanding is that an employment lawyer or ER professional would respond:

1. If an employee represents a danger to others in the building, contact the University Police and
do nothing to provoke him. Collect specific evidence and witnesses of his abusive behavior.

2. The Law School's operating requirements (the ABA Standards) require tenure-like protection for
full clinical professors in order to protect academic freedom and there is nothing in the SUNY
Trustees' Policies or the CBA that prohibits the Dean from complying with the rules of the
accreditation agency.

3. You cannot fire a member of the permanent voting faculty because you think his or her base
salary is too high.

4. You cannot fire a member of the permanent voting faculty on the pretext that his or her job has
been eliminated if the job has not been eliminated and the name of the course he teaches has
merely been changed. In addition, Professor Malkan's contract specifically provides that he is
entitled to teach upper division writing or non-writing courses and that his faculty position is a
separate appointment from his administration position as director of LRW. If there is a financial
exigency that requires eliminating his faculty position, see the CBA provisions on retrenchment.

I cannot understand what you thought you were doing in 2008. Dean Mutua obviously did not have
any experience in either employment law or law school administration and he is, in fact, a
dangerously incompetent and dishonest lawyer. In addition, there was clear evidence from the
context of his message that he was pushing an agenda that originated with Vice-Provost Lucinda M.
Finley, who was illegally meddling in law school personnel matters.

It was a serious professional error for you and Mr. Rosenthal to allow Dean Mutua to go forward. I
can understand why Mr. Rosenthal retired shortly afterwards. The damage that has already been
done is irreparable in many ways. I have made criminal allegations against Dean Mutua and
President Tripathi that cannot be withdrawn and my damages from this malicious and criminal
misconduct are in the multi-million dollar range after six years of repression and defamation that
originated from and was protected by the highest levels of the University. Nevertheless, you and
Mr. Reed have no justification for allowing the resources of the State to be used to prolong
this injustice any longer.

Sincerely,


Jeffrey Malkan


From: Makau Mutua [mailto:mutua@buffalo.edu]
Sent: Friday, July 11, 2008 6:00 PM
To: Reed, Jeffrey; ROSENTLE@sysadm.suny.edu
Cc: Finley, Lucinda
Subject: Professor Jeffrey Malkan

Dear Jeff, Lew:

I am sorry I have not had a chance to talk with you formally after being named Dean of the Law
School. It has been hectic, as you can imagine. But it is never too late, and now is as good a time
as any!

I am writing with respect to Professor Jeff Malkan whom I believe Lucinda Finly has spoken
with you about in the past. Bottom line is that Jeff's letter of appointment by former Dean Nils
Olsen was quite irregular and seems ultra vires. It virtually granted Jeff tenure in a manner that is
not consistent with our rules. You may recall that in March I relieved Jeff of his duties as
Director of the Research and Writing Program because of poor performance and terrible lack of
leadership in the program. I took that action after extensive performance reviews by all the
instrcutors in the program and other faculty knowledgeable about the program. During those
reviews, Jeff became abusive and threatened his instructors with retaliation. Several of them
expressed fear of physical violence. At the same time, he was extremely abusive, threatening,
and confrontational against me. At one point, he threatened in a committee meeting that "he was
not the kind of person to be messed with" and that I "would not get away with this." He created a
very hostile environment.

But it is to Jeff's appointment as clinical professor that I want to return. ABA Rules on which
Dean Olsen relied in writing Jeff's letter of appointment permit the Law School to non-renew his
contract because of termination or substantial modification of a program. In our case, we have
terminated the Research and Writing Program to which Jeff was appointed and are replacing it in
the fall with a Skills Program, a completely different program. I believe this change permits me
to non-renew him.

I have captured some of these reasons in the draft non-renewal letter. But I have stayed away
from his abusive conduct as a reason. Obviously, I want to minimize the likelihood of a suit or
limit its impact if it comes to pass. Could you look at the letter and advise me on what you think?
Jeff is paid $100,000 while all the other instructors in the program who are women -- and whom
I am giving non-renewal notices -- are paid $40,000. I cannot justify from a business point of
view his continuation in office at that salary for a program that has been terminated. I welcome
your views on this, including on language to make the letter more airtight.

I have to give this notice by July 15 and so I would hope that you can get back to me on Monday,
if possible. Thanks so much!

Makau Mutua Dean SUNY Distinguished Professor Professor of Law Floyd H. & Hilda L. Hurst
Faculty Scholar Director, Human Rights Center State University of New York Buffalo
LawSchool 319 O'Brian Hall Buffalo, New York 14260 Tel: (716) 645-2052 Fax:(716) 645-
5968


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.

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/>
www.hr.buffalo.edu<http://www.hr.buffalo.edu>