PERB Transcript - Nov 17 2009

Dean R. Nelson - Court Reporter(716) 741-9255

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VOLUME 1

STATE OF NEW YORK

PUBLIC EMPLOYMENT RELATIONS BOARD

* * * * * * * * * * * * * * * * * * * * * *

In the Matter of: *

UNITED STATES UNIVERSITY PROFESSIONS, *

NEW YORK STATE UNITED TEACHERS, *

AFT, LOCAL 2190, AFL-CIO, *

Charging Party, *

*

-and- Case No. U-28826

STATE OF NEW YORK (State University *

Of New York at Buffalo) *

Respondent. *

* * * * * * * * * * * * * * * * * * * * * *

Public Employment Relations BoardMain Hearing RoomFifth Floor80 Wolf RoadAlbany, New York 12205Tuesday, November 17, 2009

The above-entitled matter came on for hearingat 12:15 p.m., pursuant to Notice.

Before: KENNETH S. CARLSON Administrative Law Judge


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A P P E A R A N C E S:

NEW YORK STATE UNITED TEACHERS, Western New York Regional Office, 270 Essjay Road, Williamsville, New York 14221-8276 BY: TARA SINGER-BLUMBERG, Labor Relations Specialist, and MARILYN RASKIN-ORTIZ, Associate Counsel, appearing on behalf of the Charging Party.

STATE OF NEW YORK, GOVERNOR'S OFFICE OF EMPLOYEE RELATIONS, MICHAEL N. VOLFORTE, Acting General Counsel, Agency Building 2, 13th Floor, Empire State Plaza, Albany, New York 12223-1250, BY: LYNN HOMES VANCE, of Counsel, appearing on behalf of the Respondent.

* * * * * * * * * *

INDEX TO EXHIBITS

EXHIBIT DESCRIPTION FOR ID IN EVID

ALJ:

1. Original Charge 10 10

2. Notice of Conference 10 10 dated 12/26/08.

3. Letter from Ms. Vance to 10 10 Director Monte Klein dated 1/23/09.

4. Answer 10 10

5. Letter from Director Klein to 10 10representatives dated 1/27/09rescheduling the conference inthis matter.

6. Notice of Hearing dated 4/03/09. 10 10


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INDEX TO EXHIBITS CONT'D

EXHIBIT DESCRIPTION FOR ID IN EVIDALJ:

7. Letter from ALJ Carlson to 10 10representatives dated 5/07/09adjourning original hearing andrescheduling for 9/16/09.

8. Letter from ALJ Carlson to 10 10representatives dated 9/11/09granting Ms. Vance's requestfor adjournment.

9. Letter from ALJ Carlson to 10 10representatives dated 9/17/09confirming hearing date of11/17/09.

JOINT:

1. Collective Renegotiated Agreement 12 12Between the parties for the periodOf 7/07/07 through 7/01/2011.

2. Series of e-mails from Cheri 12 12Tubinis to Jeff Malkan dated3/10/08 through 3/13/08.

3. An e-mail from Cheri Tubinis on 12 12behalf of Jeff Malkan dated3/13/08 at 3:32 p.m.

4. An e-mail dated 3/27/08 at 12 1210:45 a.m.

5. An e-mail from Ms. Singer-Blumberg 12 12to Sarah Couch and Jeff Reid dated 5/29/08 at 2:54 p.m.

6. An e-mail from Ms. Singer-Blumberg 12 12to Scott Nostaja dated 6/11/08 at10:54 a.m. - 2 pages.


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JOINT:

7. Letter from Dean Mutua to Jeff 12 12Malkan dated 8/28/08.

8. University at Buffalo Law School 12 12newsletter titled Law Brief datedSeptember 2009.

9. U.B. Law Forum magazine, Fall 12 122009 issue - approx. 40 pages.

CHARGING PARTY:

1. Letter from Dean R. Nils Olsen, Jr. 17 17to Jeffrey Malkan dated 7/25/00.

2. Resume of Jeffery Malkan 17 17

3. Letter from Dean Olsen to Mr. Malkan 17 17dated 10/19/06 - appointment letterwith signature of Mr. Malkan on11/16/06 with an attachment titledStandards: Rules of Procedure forApproval of Law Schools.

4. Memo from Dean Olsen to Dr. Satish K. 17 17Tripathi dated 9/03/07 RE: ReappointmentOf Jeffrey Malkan.

5. Minutes from 5/07/08 law school 17 17faculty meeting - 3 pages.

6. E-mail from Cheri Tubinis to a list 17 17serve for the law school dated6/19/08 with the subject of GeorgeKannar and skills training.


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CHARGING PARTY:

7. Memo from George Kannar dated 17 174/15/09 with the subject ProposedFaculty Resolution EstablishingA Legal Skills Program, RecommendedFor Faculty Adoption by the A.P.P.C.on 4/15/09.

8. The Bylaws and Standing Orders of 17 17The Faculty at the University atBuffalo Law School, the State University of New York.

9. Minutes of law school faculty 17 17Meeting held on Friday, September 12, 2008 - 2 pages.

10. Posting for a position at the 17 17University of Buffalo dated10/10/08 on behalf of GeorgeKannar - 3 pages.

11. Letter from J. Malkan to 17 17Professor George Kannar dated10/24/08.

12. Letter from James A. Gardner, 17 17Vice Dean for Academic Affairs,To J. Malkan dated 3/30/09.

13. University at Buffalo Law School 17 17Section L, 2008 Fall Schedule -3 pages.

14. University at Buffalo Law School 17 17Fall 2009 Schedule.

15. E-mail from Sarah Couch to 17 17 Ms. Singer-Blumberg dated 5/23/08at 1:35 p.m. regarding Updates.


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CHARGING PARTY:

16. Memo from Tony Szczygiel to the 85 87 Committee on Clinical Promotionand Review dated 4/06/09.

RESPONDENT:

1. Dean Mutua's resume. 18 18

2. Letter from Dean Mutua to 18 18Mr. Malkan dated 2/20/08.

3. Letter to Ms. Laura Reilly 19 --dated 2/20/08 RE: A Letterof Evaluation.

4. Copy of the 4/22/09 meeting 20 20Minutes - 2 pages.

5. Going Forward: Principles, 20 20Aspirations and Strategiesfor the University at BuffaloLaw School, approved 5/16/08and amended on 10/17/08 -multiple pages.

6. Applicant list for the position 20 20Of Lecturer XII.


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WITNESS INDEX

NAME D X RD RX

Jeffrey Malkan 27 96 103 --

Opening Statement:

By Ms. Singer-Blumberg Page 22

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LAW JUDGE CARLSON: Good afternoon. I will

note for the record it is afternoon. This is a formal

PERB hearing in Case No. U-28826. This improper practice

charge was filed by United University of Professions

alleging a violation of Section 209A(1a) and 209A(1c) of

the Public Employees Fair Employment Act.

Specifically, the charge alleges that the

employment contract for a clinical professor at the

University of Buffalo Law School was not renewed in

response to the union's efforts in advocating on behalf

of that professor. For the record I am Kenneth S.

Carlson, the administrative law judge assigned to hear

this matter. May I have the appearances of the parties,

please, for the record?

MS. SINGER-BLUMBERG: Tara Singer-Blumberg

for the Charging Party.

MS. VANCE: Lynn Homes Vance of counsel to

the Governor's Office of Employee Relations, Michael N.

Volforte, acting general counsel.

LAW JUDGE: Thank you. I just noted before

it's afternoon. We met in conference this morning to go

through a number of exhibits. I appreciate the parties

efforts and willingness to stipulate to a lot of

exhibits. It saves us a lot of time on the record. It

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did take us a while this morning, but I do believe that

that will save us some time and some -- some headaches

going forward. I am going to read into evidence -- or

enter into evidence and read into the record what we have

starting with the ALJ exhibits.

ALJ Exhibit No. 1 is the Original Charge in

this matter. It was date stamped as having been received

by PERB on December 22, 2008 and it was postmarked on

December 19, 2008. I will note for the record there are

a number of exhibits -- letter attachments, if you will,

to the Charge. They are in evidence as part of the

Charge, but they will be coming in later as joint

exhibits for the truth of the -- of what's asserted in

those records. So, what we have attached to the Charge,

in other words, we will also be dealing with later

through some joint and stipulated exhibits.

ALJ No. 2 is the December 26, 2008 Notice of

Conference.

ALJ Exhibit No. 3 is a January 23, 2009

letter from Director -- I'm sorry -- from Ms. Vance to

Director Monte Klein. That was ALJ Exhibit 3.

ALJ Exhibit No. 4 is the Answer.

ALJ Exhibit No. 5 is a January 27, 2009

letter from Director Klein to the representatives

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rescheduling the conference in this matter.

ALJ Exhibit No. 6 is the April 3, 2009

Notice of Hearing.

ALJ Exhibit 7 is a May 7, 2009 letter from

me to the representatives adjourning the original hearing

and rescheduling it for September 16, 2009.

ALJ Exhibit No. 8 is a letter from me to the

representatives dated September 11, 2009 granting

Ms. Vance's request for an adjournment for the hearing

over Ms. Singer-Blumberg's objection. Again, that was

ALJ Exhibit No. 8.

ALJ Exhibit No. 9 is a September 17, 2009

letter from me to the representatives confirming that a

hearing in this matter had been rescheduled for today.

Those are the ALJ exhibits.

{The documents referred to, ALJ ExhibitsNos. 1 through 9, were marked foridentification and received in evidence}.

LAW JUDGE: We also have a number of joint

exhibits starting with Joint Exhibit No. 1, which is a

copy of the Collective Renegotiated Agreement between the

parties dated July 7, 2007 through July 1, 2011. That is

Joint Exhibit No. 1.

Joint Exhibit No. 2 is a series of e-mails

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dated March 10, 2008 through March 13, 2008, the last

message coming at 2:04 p.m. on the thirteenth. Again,

that's Joint Exhibit No. 2.

Joint Exhibit No. 3 is an e-mail also dated

March 13, 2008. This one at 3:32 p.m.

Joint Exhibit No. 4 is another e-mail dated

March 27, 2008 at 10:45 a.m.

Joint Exhibit No. 5 is an e-mail from

Ms. Singer-Blumberg to a Sarah Couch and a Jeff Reid

dated May 29, 2008 at 2:54 p.m.

Joint Exhibit No. 6 is another e-mail from

Ms. Singer-Blumberg to a Scott Nostaja, N-O-S-T-A-J-A,

dated June 11, 2008 at 10:54 a.m. That is a two-page

e-mail.

Joint Exhibit No. 7 is an August 28, 2008

letter from Dean Mutua, M-U-T-U-A, to a Mr. Jeffrey

Malkan, M-A-L-K-A-N. Let's go off the record for a

second.

{There was an off the record discussion}.

{Back on the record}.

LAW JUDGE: We're back on the record.

That was Joint Exhibit 7.

Joint Exhibit No. 8 is a copy of a -- I

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don't know what you call this -- a newsletter of some

sort from the University at Buffalo Law School titled Law

Brief with a date of September 2009. That is Joint

Exhibit No. 8.

Joint Exhibit No. 9 is a magazine of some

sort titled U.B. Law Forum, fall -- the date of this is

Fall 2009. It's a multi-page magazine -- about forty

some odd pages. Of relevance to this hearing the parties

have agreed only -- the only relevance to this hearing

are Pages 16, 17 and 18.

Can we stipulate to that on the record?

MS. SINGER-BLUMBERG: Yes.

LAW JUDGE: Ms. Vance?

MS. VANCE: Yes.

LAW JUDGE: Thank you. All right. That was

Joint 9. That covers all of the Joint exhibits.

{The documents referred to, JointExhibits Nos. 1 through 9, were markedfor identification and received inevidence}.

LAW JUDGE: We have a number of Charging

Party exhibits as well. We'll start with Charging Party

No. 1, a July 25, 2000 letter to Jeffrey Malkan,

M-A-L-K-A-N, from Dean R. Nils Olsen, Jr. Nils is

N-I-L-S. Olsen is O-L-S-E-N. This is concerning an

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initial appointment of Mr. Malkan. That was Charging

Party No. 1.

Charging Party No. 2 is Mr. Malkan's resume.

Off the record.



LAW JUDGE: The resume was Charging Party 2.

Charging Party No. 3 is an October 19, 2006

letter to Mr. Malkan from Dean Olsen. I will note that

this -- in fact, this is an appointment letter. There is

a line at the end for Mr. Malkan to sign, which he has

done -- or he had done, accepting the appointment as a

clinical professor -- actually two lines. There is also

a line where he accepts the appointment as director of

research and writing as well. It's handwritten dated

November 16, 2006 next to his signatures. Let's go off

the record for a moment.

{There was an off the record discussion at this point in

time}.


LAW JUDGE: Let's go back on the record. I

will note that along with the two plus page letter with

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the signatures there is a series of attachments -- or

there is an attachment titled Standards: Rules of

Procedure for Approval of Law Schools from the American

Bar Association -- a couple of pages -- maybe four pages

from the A.B.A., the American Bar Association. That is

Charging Party No. 3.

Charging Party No. 4 is a one-page

document -- a memorandum to Dr. Satish K. Tripathi --

Satish, S-A-T-I-S-H, K as in key, Tripathi,

T-R-I-P-A-T-H-I -- who is the provost and Executive Vice

President for Academic Affairs from Dean Olsen. This

memo is dated September 3, 2007 with a subject of

reappointment of Jeffrey Malkan. Again, that's Charging

Party No. 4. In effect, this memo is a clarification of

the title Professor Malkan was changed from -- or my

understanding was it's a clarification to correct that

the title was clinical professor rather than clinical

associate professor. That's Charging Party 4.

On to Charging Party No. 5. These are

minutes from the May 7, 2008 law school faculty meeting.

It's a three-page document. We've agreed that's in as

Charging Party 5.

Charging Party No. 6 is a June 19, 2008

e-mail from Cheri, C-H-E-R-I, Tubinis -- Tubinis,

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T-U-B-I-N-I-S, to what appears to be a list serve for the

law school with a subject of George Kannar, K-A-N-N-A-R,

and skills training. While this was sent by Ms. Tubinis,

I presume she is the dean's assistant; is that correct?

MS. SINGER-BLUMBERG: Correct.

LAW JUDGE: We have a nod from --

MS. VANCE: Yes.

LAW JUDGE: -- okay. Thank you. And the --

I don't want to call it a signature, but typed in is the

dean's name. So, although it was sent from the

secretary, I presume this was under the authority of the

dean. Do we have a stipulation to that effect?


MS. VANCE: Yes.

LAW JUDGE: Okay. Thank you.

That's Charging Party No. 6.

Charging Party No. 7 is a memo to the U.B.

Law Faculty from George Kannar, K-A-N-N-A-R, dated

April 15, 2009 with the subject Proposed Faculty

Resolution Establishing a Legal Skills Program,

Recommended For Faculty Adoption by the A.P.P.C. on

April 15, 2009. This is -- the memorandum is a one-page

memo with the second page being the Proposed Faculty

Resolution and the third page being a chart. We'll get

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back to that later as well, but that for now is


Charging Party No. 8 is a multi-page

document -- about a dozen -- thirteen pages titled The

Bylaws and Standing Orders of the Faculty at the

University at Buffalo Law School, the State University of

New York. That was Charging Party No. 8.

Charging Party No. 9 is minutes of a meeting

of the law school faculty held on Friday, September 12,

2008. That is Charging Party 9. It's a two-page

document.

Charging Party No. 10 is a posting for a

position at the University of Buffalo posted on behalf of

George Kannar. I'll note that here the -- Mr. Kannar's

last name is spelled differently than it was previously,

but we've all agreed this is the same person. Here it's

spelled K-U-N-N-A-R. I don't know what's correct, but in

the record we're referring to the same person whether

it's with the U or the A. This posting was dated

October 10, 2008. The document is a three-page document.

Again, that was Charging Party 10.

Charging Party No. 11 is an October 24, 2008

letter to Professor George Kannar from Mr. Malkan. It's

a one-page document. That's Charging Party No. 11.

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Charging Party No. 12 is a March 30, 2009

letter to Mr. Malkan from a James A. Gardner,

G-A-R-D-N-E-R, Vice Dean for Academic Affairs. That was


Charging Party No. 13 is a three-page

document titled the University at Buffalo Law School

Section L Fall 2008 Schedule. That was Charging Party

No. 13.

Charging Party No. 14 is a similar schedule

for the fall of 2009.

Finally, for the Charging Party exhibits, we

have Charging Party No. 15, which is an e-mail from Sarah

Couch, who is the assistant director of employee

relations, to Ms. Singer-Blumberg with a date of May 23,

2008 at 1:35 p.m. with the subject updates. It's a

one-page document and that was Charging Party No. 15.

{The documents referred to, ChargingParty Exhibit Nos. 1 through 15 were markedfor identification and received inevidence}.

LAW JUDGE: We have just a handful of

Respondent exhibits as well starting with Respondent

Exhibit No. 1, what I will describe as a resume for the

current dean, Mr. Mutua, M-U-T-U-A. This has been marked

and entered as Respondent Exhibit No. 1.

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Respondent No. 2 is a February 20, 2008

letter from Dean Mutua to Mr. Malkan. I will note for

the record we discussed this in conference. The copies

that we have of both Respondent Exhibits 2 and 3 are

unsigned by the dean, but there was no question as to the

authenticity of these documents, at least that's my

understanding.

MS. SINGER-BLUMBERG: Correct.

LAW JUDGE: Okay. So, Respondent Exhibit 2

was the 2/28/08 letter to Mr. Malkan.

{The document referred to, Respondent'sExhibit Nos. 1 and 2, were markedfor identification and received inevidence}.

LAW JUDGE: Respondent Exhibit No. 3 is a

similar letter, also dated 2/20/08, to a Ms. Laura

Reilly, R-E-I-L-L-Y, the difference being that there is

an attachment regarding a letter of evaluation and some

additional text in the letter, but otherwise, again, it's

fairly similar to Respondent Exhibit 3. Did we -- let's

go off the record.



LAW JUDGE: Respondent Exhibit 3 has been

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marked for identification purposes only at this point.

As I indicated before, with respect to Respondent 2, that

document had been received by Mr. Malkan and we had

verification of authenticity there. This document was

received by Ms. Reilly who is not in attendance today, so

we don't have this verified just yet. We may get there

through testimony, so we did want to mark this and it has

been marked only, not entered, as Respondent Exhibit 3 at

this point.

{The document referred to, Respondent'sExhibit No. 3, was markedfor identification}.

LAW JUDGE: Respondent Exhibit No. 4 is an

April 22, 2009 -- a copy of the minutes, I should say,

from the April 22, 2009 meeting. It's a two-page

document entered as Respondent 4.

Respondent Exhibit No. 5 is a multi-page

document -- it seems to be about a dozen pages -- titled

Going Forward: Principles, Aspirations and Strategies

for the University at Buffalo Law School. It indicates

that it was approved by the faculty on May 16, 2008 and

amended on October 17, 2008. This has been marked and

entered as Respondent Exhibit No. 5.

Respondent Exhibit No. 6 is an applicant

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list for the position title of Lecturer XII and a posting

number of 0800451. In effect what we have here is a

computer listing of a number of applicants or candidates

for the position with some notations as to the status of

such applications. Again, that was Respondent Exhibit

No. 6.

I do want to go back for a moment. I forgot

to mention when we were on Respondent No. 4 -- Respondent

No. 4 references an attachment somewhere in there?

MS. SINGER-BLUMBERG: The beginning.

LAW JUDGE: Oh, yes, number one. Copy

attached. That attachment -- I had mentioned before,

Pages 2 and 3 of Charging Party Exhibit No. 7 -- was --

is also or was also the attachment to Respondent Exhibit

No. 4. Could we have a stipulation from the parties on

that?


MS. VANCE: Yes.

LAW JUDGE: Okay. Thank you. All right.

{The document referred to, Respondent'sExhibit Nos. 4, 5 and 6 were markedfor identification and received inevidence}.

LAW JUDGE: With that I'll note that it's

about a quarter to one. Do you want to give an opening

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now or do you want to go to lunch.

MS. SINGER-BLUMBERG: I' rather go to lunch

and do it --

LAW JUDGE: Fair enough. Make it all in one

fell swoop.

MS. VANCE: Why don't we get Mr. Volforte's

spelling for the record?

LAW JUDGE: Fair enough. Volforte, V-O- --

MS. VANCE: Michael N. Volforte.

LAW JUDGE: -- V-O-L-F-O-R-T-E. He's the

Acting General Counsel for the Governor's Office of

Employee Relations.

MS. VANCE: And why don't we get

Mr. Kannar's spelling.

LAW JUDGE: Yes. Which is it?

Is it U or A?

MS. SINGER-BLUMBERG: I think it's A.

LAW JUDGE: George Kannar, K-A-N-N-A-R.

MS. VANCE: Is that correct?


LAW JUDGE: With that let's go off the

record and we'll take a little break. Off the record.

{There was a short break in the proceeding at this point

in time}.

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LAW JUDGE: We're back on the record. When

last we left off before lunch we had read the Joint,

stipulated, ALJ and Respondent and Charging Party

Exhibits into the record and upon our return

Ms. Singer-Blumberg is going to give an opening

statement.

MS. SINGER-BLUMBERG: Thank you.

LAW JUDGE: The floor is yours.

OPENING STATEMENT BY MS. SINGER-BLUMBERG

MS. SINGER-BLUMBERG: Professor Jeffrey

Malkan was hired by the Law School at the University of

Buffalo as a clinical associate professor on September 1,

2000. He also held an administrative position as

director of the research and writing program. As a

result of his director position, he had a one course

release from his teaching duties.

In April 2006 the full law school faculty

voted to renew his contract and promote him to clinical

professor as well as continuing as director of research

and writing. Professor Malkan continued in this dual

appointment until he was summarily removed as director

during the school's spring break in March 2008. The

director position was an at will position. As such

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Professor Malkan could be removed without the necessity

for cause; however, due to the summary way that he was

removed and the fact that his removal was announced by

the dean to the entire faculty during spring break,

Professor Malkan was questioned by his colleagues about

what he had done wrong and rumors were flying.

As a result, Professor Malkan initially

requested a meeting with the dean to discuss the research

and writing program as well as his removal as director.

The dean refused to meet with him. Professor Malkan then

sought UUP's assistance to demand that the dean be

required to meet with him as well as for the dean to

issue a clarification memo to the faculty indicating that

Professor Malkan had not done anything wrong. For

clarification, UUP is United University of Professions,

the bargaining agent at U.B. for the faculty.

UUP through its labor relations specialist,

Tara Singer-Blumberg, repeatedly requested that the

director of employee relations, Jeff Reed, R-E-E-D,

arrange for a meeting with the dean and a name clearing

e-mail. During the very first discussion in March 2008,

Tara Singer-Blumberg specifically asked Jeff Reed if

there was any intent on the dean's part to terminate

Professor Malkan's employment at the law school as a

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clinical professor. Jeff Reed told Tara Singer-Blumber

that there was no such plan to remove him from his

clinical professor position.

Over the following several months in the

spring of 2008 Tara Singer-Blumberg repeatedly requested

and pushed for the meeting and the name clearing e-mail.

In addition, UUP requested copies of memos allegedly

written by the research and writing instructor assessing

Professor Malkan's performance. The only response that

was forthcoming from the dean through Jeff Reed was that

if the dean was going to send out another e-mail to the

faculty he would quote "telling to the truth about

Professor Malkan" and it would indicate that he was

removed as director for incompetence.

When Tara Singer-Blumberg could not make any

progress with Employee Relations she contacted the chief

of staff and V- -- vice president for human resources,

Scott Nostaja. Tara Singer-Blumber had several

conversations with Scott demanding that Scott get the

dean to do the right thing and meet with Professor

Malkan. Scott advised Tara that he was in communication

directly with the dean and that the dean was fighting him

on UUP's demands. UUP never stopped demanding that the

dean meet with Professor Malkan.

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25

On August 28, 2008, Professor Malkan was

non-renewed from his position as clinical professor. The

last date of his employment was August 31, 2009. On

March 13, 2008, when the dean removed Professor Malkan as

director, he advised Professor Malkan and the entire

faculty that he had decided that the research and writing

program should move in a different direction under new

leadership. When Professor Malkan was non-renewed, the

written reason provided by the dean in the non-renewal

letter was that the law school had terminated the

research and writing program. The research and writing

program was never terminated in 2008.

During the 2008-2009 academic year the dean

appointed a professor to study the feasibility of making

changes to the program. Any proposal then had to be

presented to the full faculty for a vote. In April 2009,

the faculty were finally presented with a proposal, which

did not materially change any aspect of the research and

writing program. The same curriculum is being offered

using the same textbooks as in prior years. The only

changes to the program were that the research and writing

program was incorporated into a skill programs, which now

included some mandatory second and third year offers.

When Professor Malkan was first removed as

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26

director, he was advised that it was because of the

dean's intention to move the research and writing program

in a new direction. At that time there was no intention

to remove him from his academic position. Then the union

went to bat on his behalf to demand that the dean treat

him fairly and clear his name. The pressure that the

union placed on the dean on Malkan's behalf resulted in

the dean's non-renewal of Professor Malkan. The dean's

rationale that the research and writing program was

terminated is both false, not supported by the facts and

pretextural.

LAW JUDGE: Thank you. Ms. Vance, I

understand you'd like to reserve until your case --

MS. VANCE: Yes. Thank you.

LAW JUDGE: -- for an opening. Okay. Thank

you. Ms. Singer-Blumberg, you can call your first

witness then.

MS. SINGER-BLUMBERG: We call

Professor Malkan.

WHEREUPON,

JEFFREY MALKAN, was called by and on

behalf of the Charging Party, and, being first duly

sworn, was examined and testified as follows:

LAW JUDGE: You may be seated. Do me a

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{ Malkan - Direct - Singer-Blumberg } 27

favor and just state and spell your name for the record.

THE WITNESS: Jeffrey Malkan, J-E-F-F-R-E-Y

and M-A-L-K-A-N.

LAW JUDGE: Your witness.


DIRECT EXAMINATION OF JEFFREY MALKAN

BY MS. SINGER-BLUMBERG:

Q. Mr. Malkan, what's your educational background?

A. I have my Bachelor's degree from Columbia College in

New York. I was an English major. I have a Ph.D. in

English from the State University of New York at

Stonybrook. My J.D. is from the City University of New

York and I have a J.S.M. degree from Stanford Law School.

Q. We marked already into the record your curriculum

vitae -- your resume as Charging Party Exhibit 2.

Is that a current resume for you?

A. Yes, it is.

LAW JUDGE: Just for the record, I'm handing

the witness a copy of Charging Party 2.

{Document handed to the witness}.

MS. SINGER-BLUMBERG: No, he handed -- you

handed it -- am I supposed to bring them up?

LAW JUDGE: No, that's fine. That's fine.

MS. SINGER-BLUMBERG: Okay.

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LAW JUDGE: You ref- -- let's go off the

record for a second.



LAW JUDGE: Let's go back on the record.

Go ahead.


Q. So, you have a copy of what's been mark- -- of what's

been entered into the record as Charging Party Exhibit 2.

A. Yes.

Q. Is that your current resume?

A. Yes.

Q. Okay. Thank you. And you were first employed by U.B.

when?

A. In 2000.

Q. In 2000.

A. The fall of 2000.

MS. SINGER-BLUMBERG: And can we show a copy

of Charging Party 1? I have extra copies if it's easier

for you to have one and he can refer --

LAW JUDGE: Sure. It's easier if I don't

have to keep handing them to him, but --

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LAW JUDGE: -- it's easier for me. Now, for

you to get up and keep walking --

MS. SINGER-BLUMBERG: That's okay.

I'm showing you what's been entered into the

record as Charging Party Exhibit 1, which we've marked as

your 2000 appointment letter.

{Document handed to the witness}.

THE WITNESS: Yes.


Q. Can you explain in what capacity you were employed by the

University of Buffalo?

A. The written -- the -- the -- I was hired as a clinical

associate professor and the job was -- was created in

order to provide the school with a director of the

research and writing program. So, this was what the --

before I was hired, the faculty decided that a full-time

permanent member of the faculty should be in charge of

the research and writing program and because no one on

the faculty was either willing or qualified to do it at

the time, they decided to do a national job search for

this position and I was the person hired.

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So, my academic rank was clinical associate professor

and it was also -- it was also understood that I was to

have the administrative responsibility of being director

of the research and writing program.

Q. And what is the interplay between the two titles?

A. One is a faculty appointment and the other is an

administrative appointment.

Q. Okay.

A. And so on the faculty side I was responsible for teaching

a regular courseload -- load of twelve credits. That's

the regular courseload of a -- of a -- of a full-time

member of the faculty.

On the administrative side I was supposed to have --

I was gonna have the duties of being responsible for

hiring and supervising and training members of the

research and writing faculty. As an offset for my

administrative duties, the dean promised me that in

future years I would have three credits removed from my

teaching load, so I'd only -- I would only be teaching

nine credits.

He also promised me that I'd be able to broaden my

teaching responsibilities in future years, so I wasn't

exclusively teaching legal writing. I'd also be teaching

other doctrinal courses. So, at the outset; however,

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because of their restraints of current faculty at the

school, he told me that I would have to teach exclusively

research and writing and also at the beginning I didn't

receive any courseload reduction. So, that's why the

letter says -- I -- at the beginning I was gonna teach

two sections of research and writing each semester, which

was the regular -- the same as the instructors taught,

but in the future he promised me that that would be

reduced, which he ultimately did as over the subsequent

years we added members to the research and writing

faculty.

Q. And how many members were there when you first joined it?

A. At -- when I started there were four full-time

instructors plus me for a total of five people teaching

the program and so we had a total of ten sections of

research and writing.

Q. And did that fluctuate from year to year?

A. Yes, it increased -- I don't have the exact recollection,

but we added an additional instructor a couple of years

later and then finally it -- we added another instructor,

so by the end of my tenure as director of the program in

2008, we had six full-time instructors plus me for a

total of seven teachers in the program.

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We were running thirteen sections of research and

writing for a first year class of approximately 240

students. So, each instructor taught two sections, two

times six equals twelve, and my section was thirteen.

Q. Okay. And the other people in the research and writing

program that were providing these classes, what title did

they hold?

A. They were instructors.

Q. What's your understanding of that title? Can you

elaborate what that --

A. Right.

Q. -- title means?

A. There is a very important distinction in the faculty

between full-time members of the voting faculty and other

people who teach in the law school. The other people --

part-time teachers in the law school are called adjuncts.

Full-time teachers in the law school would be

instructors. But neither the instructors nor the

adjuncts are considered to be members of the faculty.

They're not allowed to attend faculty meetings or vote

faculty meetings -- at faculty meetings.

Another difference is that instructors and adjuncts

are hired to teach a specific course. So, when the law

school hires an adjunct they might hire an adjunct to

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teach secure transactions and that's what their teaching

responsibility is. The research and writing instructors

are hired to teach research and writing and that's

what -- they are limited to that.

Other faculty members have a -- their courseload is

defined by the number of credits they're responsible for

teaching, so at -- at -- like other faculty members in

the law school, I was hired on the basis of my interests

and my qualifications and -- and there was a certain

expectation that I would teach writing courses and

intellectual property courses, but as far as like what

exactly I would be teaching year to year, that would be

open to negotiation between me and the vice dean for

academic affairs.

So, my course -- my teaching responsibility is

defined as twelve credits a year, just like -- and every

other member of the clinical faculty and the tenured --

and tenured tract faculty.

Q. Okay. What were the appointment terms for these other

instructors?

A. Throughout the time that I was the director the

instructors were on what -- what you refer to as capped

contracts. They were only allowed to be at the law

school for a total of three years and they received a

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sequence of three one-year contracts, renewed annually,

and after the -- the -- after the initial appointment and

the two subsequent renewals, they weren't supposed to be

eligible for further reappointments, so they were what we

call short-term contracts. Over the years the dean at

the time, Nils Olsen -- through my persuasion and

controlling of him I -- I -- I let him renew some of

these people beyond the three-year terms, but he was only

doing that sort of at his -- at his own discretion as --

as the dean and it wasn't something that the faculty had

ever formally approved.

Q. And were you involved in the hiring of these instructors?

A. Officially these -- these instructors are -- were what

are -- what are called detainal appointments. In other

words, they're not appointed by the faculty. They're

appointed by the dean under his administrative discretion

and responsibility; however, he would delegate that job

to me and I would always enlist the assistance of whoever

the vice dean for academic affairs was at the time.

So, I would do the initial screening and then I would

confer with the vice dean of academic affairs and I would

consult other faculty members if anybody was interested

in participating in the hiring process, but usually there

wasn't a whole lot of interest in these -- in these

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positions. So, we would interview the candidates -- we'd

screen the candidates, interview the candidates and make

a recommendation to the dean, which he would always

follow -- he -- he always followed my recommendation in

hiring. So, it was done under his authority.

It's diff- -- I mean, it's different from faculty

appointments in that faculty appointments are hired

through the faculty appointments committee and faculty

hires go to the entire faculty for a vote and -- and then

the dean, you know, extends the offer to the candidate,

but only after the faculty has both screened and

interviewed and voted upon the candidates. The faculty

never actually met these candidates at all unless if I

somehow managed to get them to attend an interview and

then I would solicit their feedback.

Q. Okay. Were you involved in the renewal decisions as well

for these instructors?

A. Yes. I was -- I mean, it was -- it was my responsibility

to ensure that they were, you know, doing their job and

fulfilling their responsibilities, so I was the person

who would find -- you know, signal to the vice dean

whether there were any problems with any of the

instructors; however, the amount of review that we ever

did with these instructors was somewhat limited because

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they were on capped contracts, so there was never any

point at which we did a very thorough review of the

candidates.

It was after -- going into their third year they were

basically going to be terminated anyway automatically, so

we did the year to year and -- year to year oversight of

them and, you know, reviewed their performance at the end

of every year, but we never did any kind of overall

assessments of whether we wanted to keep them at the law

school.

Q. Now, what were your duties as clinical associate

professor?

A. Well, as -- the -- the instructional part of my job

involved teaching at the -- initially teaching two

sections of legal writing as I mentioned before. By the

time I was at the end of my time at the law school I

taught the one section -- one section of legal writing

and usually I -- my favorite course is copyright law, so

I'd usually teach one section of copyright law and I

often taught a sem- -- some type of intellectual property

seminar. At the very -- my very last year at the law

school I also taught an advanced writing course in

contract drafting.

Q. If I can draw your attention back to -- and I have

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extras, so you can just hold onto these as we go -- to

the resume that we just referred to, which is Charging

Party Exhibit 2, on the second page -- or on the third

page is a list of the courses that you taught at the law

school?

A. Yes.

Q. And other than the research and writing, the first listed

course which you list there from 2000 and through 2009,

are these other courses within the research and writing

area?

A. The only one that's within the writing area is advanced

legal writing contract drafting, so that would be an

upper division writing course. The rest were basically

in the intellectual property area. The only straight --

like doctrinal -- straight doctrinal course was copyright

law. The others were seminars or colloquia.

Q. Okay. When you were hired who interviewed you for your

position in 2000?

A. I was treated just like any faculty candidate. I went

through the entire faculty hiring process, so what that

meant is first the faculty appointments committee

selected me for an interview. I was invited to an on

campus interview. It -- it -- that was a two day affair.

The evening of the first day I went out to dinner with a

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group of faculty members and they sort of interviewed me

over dinner.

The next day I spent the morning visiting various

faculty members in their offices. So, usually two or

three faculty members gather in an office and they spend

half an hour to forty-five minutes talking to the

candidate and so you -- you go from office to office

meeting faculty members. Then at lunch you give a

presentation, which is usually referred to as a job talk,

where you give an address to the entire faculty on some

interested -- on some topic of your int- -- of your

choosing and usually you get forty-five minutes to -- to

talk to the faculty and then there is usually half an

hour to forty-five minutes of a question and answer

session after your presentation.

Then following the -- the job talk and -- and lunch

then -- then you would resume -- I resumed office

interviews, going and meeting additional faculty members

in their offices, and the last interview of the day is in

the dean's office where I met Dean Nils -- Dean Nils

Olsen and spent some time talking to him about the job.

So, this was exactly the same process that -- that's

hired for -- that's followed for clinical professors and

tenured tract faculty.

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And subsequent to my on campus interview then the

faculty met as a whole with a recommendation from the

appointments committee for my appointment and the faculty

voted to offer me the job and Nils Olsen conveyed the

offer to me, which I accepted.

Q. And you worked out the details of your dual appointment

with who?

A. With Dean Olsen.

Q. Now, your initial contract, which you have as Charging

Party 2 states that it was --

MS. VANCE: I'm sorry. What --

MS. SINGER-BLUMBERG: -- I'm sorry --

MS. VANCE: -- what exhibit?

MS. SINGER-BLUMBERG: -- Charging Party 1.

I'm sorry. Charging Party 1. Charging Party 1 is your

2000 appointment letter.


Q. It states in Paragraph 3 that your appointment will be

for a three-year term with reappointments for a second

and then -- then in the fifth another third year term.

Did you come up for review and reappointment after

the first three year?

A. What -- what -- what Dean Olsen explained to me was that

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I was gonna have the same exact review process as the

clini- -- as the clinical professors of the -- as the

other clinical professors at the law school had and that

this profess- -- this process was parallel to the process

that was used for tenured -- tenure tract faculty -- for

university tenure.

So, the process consisted of an initial three-year

appointment -- appointment, a review after the three

years, which is usually very -- almost perfunctory, at

least it was in my case. It was just a -- we -- there

wasn't any formal review, just a review done by the dean

and then he issued me the second three-year contract.

So, these two con- -- contracts together -- the six year

period is usually referred to as your probationary

period.

Following the end of the probationary period the

entire faculty reviews the candidate to decide whether

you were gonna be offered a permanent appointment at the

law school. This review process takes place in front of

a committee of the entire tenured faculty, which is

called the promotion and tenure committee.

So, that happened in my case. It didn't happen in

the fifth year as this letter states. It might have

happened in the sixth year and that was April of 2006.

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Q. And what -- what was the process for that review?

A. The process was that I was required to prepare a doss- --

what's called a dossier, which contains materials on my

teaching, service and scholarship -- in those three

areas. I had to write an essay to describe my teaching

interests and what I've done in teaching and my service

to the law school, which was mostly administrative,

legally -- running a research and writing program and the

scholarship that I had written at the law school and

prior and it also included samples of my teaching

materials. So, that was the part of the dossier that I

prepared.

The second part was a confidential part, which I

never got to see, but letters were sent to all of my

former students over the past six years asking them to

submit comments about me. Every faculty member in the

law school was -- was invited to submit comments about me

if they had any. The person who was the point person for

doing this was Vice Dean Sue Mac- -- Vice Dean Sue

Mangold, who was the academic dean at the time. She told

me that she spoke to all of the legal writing instructors

and asked them if they had any comments about me and

invited them to write comments if they chose.

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And so this entire dossier was put together and

submitted to entire promotion and tenure committee and

then at a separate faculty meeting -- or sep- -- a

separate meeting of the promotion and tenure committee,

which was solely devoted to me, the faculty debated my

reappointment and voted to appoint me and promote -- to

promote me to clinical professor and to extend the

long-term contract to me, which is known as -- in this

profession as clinical tenure. And subsequent to this I

had a -- you know, a guarantee that this was supposed to

be a permanent appointment to the faculty.

The only difference between the clinical appointments

process and this -- a promotion process and the -- and

the tenured -- the university tenure promotion process is

that to get university tenure the dossier then goes up to

the presidential review board and the university reviews

it and approves it. So, my dossier stopped at the law

school. That was -- that's the main difference between

the two processes.

Q. Okay. Now, at the time that you had this review in 2006,

a new appointment letter was issued for you?

A. Yes.

Q. And did you -- were you involved in the drafting of this

appointment letter --

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A. Yes.

Q. -- I'm showing you what's been introduced into the record

as Charging Party 3.

A. Yes, I was involved in the negotiating and drafting of

this, so this isn't a boilerplate contract. This is

something that was carefully considered between me and

Nils Olsen and Vice Dean Sue Mangold.

Q. And do you know why the A.B.A. standards are attached to

the contract?

A. Yes, that -- I mean, the history is that I was promised

the same deal that the clinical professors had, but the

clinical professors over the years had been rather

passive about what their job security was and what they

were entitled to and so it sort of fell to me to clarify

all this.

At the time when I was, you know, considering whether

to accept this appointment and make a long-term

commitment myself to the law school, I wanted to make

sure that I wasn't going to be facing any problems over

the subsequent years, so the A.B.A. standard that governs

clinical appointments is called Standard 405-C and that

was attached to my contract as part of the contract in

order to reflect our intent that the secure- -- job

security promised by the A.B.A. standards was gonna be

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what I was actually receiving in my contract.

And we went over the A.B.A. standards together and

to -- to the extent that there were any ambiguities or

open language -- or open text or language in the -- in

the A.B.A. standards, we wanted to define what this meant

in terms of a long-term clinical contract at Buffalo Law

School. So, that's why -- that's why the standards are

attached to the contract and that's why the contract

references the standards.

At the time when the faculty voted on my

reappointment, I was told by Sue Mangold that she opened

the meeting by reading the A.B.A. Standard 405-C to the

promotion and tenure committee and explaining to them

that that's what they were voting on, so that they should

take this seriously, that this was going to be the type

of job security I was going to be receiving, which the

key term in there is reasonably similar to tenure.

So, this is basically, again, a permanent appointment

and there -- the faculty debated this and voted upon it

with the full knowledge of what they were doing.

Q. Okay. Now, the appointment letter speaks to the fact

that it's a three-year contract with a two-year

extension. Was there -- on -- on -- what was the

understanding about review before the two-year extension

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would -- would be implemented?

A. The A.B.A. Standard 405-C requires that the law school

provide the clinical professor with a sequence of five

year contracts, which are presumptively renewable. It

can only be denied -- renewable can only be denied for

good cause and SUNY's pol- -- trustees' pol- -- the

policies of the trustees of SUNY only provide for three

year contracts, so what Nils first tried to do was to get

the A- -- to -- to get the SUNY central legal department

to make an amendment to the trustees' policies to allow

clinical professors at the law school to have five year

contract terms. He failed to accomplish that, so he --

in order to comply with the A.B.A. standards, he came up

with the idea of giving me the SUNY three-year contract

and guaranteeing me a two-year extension of the contract

to come up to a sum total of five years.

So, he refers to it as a five year contract with a

three year term and two year mandatory extension. And

what we understood was the extension was supposed to be

simply a ministerial action on the part of whoever was

the dean at the time, that it didn't involve any review

process at all and the dean -- the dean wouldn't have the

discretion to break the contract at that point.

Q. In the second to last paragraph of the appointment letter

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there is a discussion about the distinct nature of your

two separate appointments and, in fact, you signed to

accept two separate appointments, right?

A. Dean Olsen was concerned that we -- at this point we make

perfectly clear what I was being appointed to, that my

appointment -- academic appointment as a clinical

professor was separate and distinct from my

administrative appointment as the director of the

research and writing program, so he was not binding

future deans to retain me as part of their administrative

team if they didn't want to have me on as the director of

research and writing, but if the dean at his discretion

decided to terminate my tenure as director of the program

or decided to eliminate that position altogether, then I

would just go onto the regular faculty.

It's similar to any -- it -- it's similar to any

other administrative appointment in the law school in

that the vice dean for academic affairs serves at the

dean's -- the dean's discretion. If the dean wants to

pick someone new to be the vice dean for academic

affairs, that professor will simply step down and return

to the faculty as a full-time faculty member.

So, he wanted to make that crystal clear and he

actually provided two signature lines for me to make

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that -- that differentiation or distinction.

Q. Okay. Now, we entered this follow-up document as

Charging Party 4 in the record. There appears that there

was a -- some confusion in -- in how your new title with

your promotion was recorded in terms of the personnel

paperwork that was filed on your behalf.

Can you just explain to us -- in the document it is

clear on its face, so were you aware -- were you aware

that this was going on or is there -- was there a change

in your appointment in 2006 in terms of your title --

your clinical title?

A. Yes. Just as when a university tenured professor is

granted tenure at the law school, there is -- it goes

along with the promotion from associate professor to full

professor. In April 2006 when the faculty voted to give

me the long-term contract, I was at the same time

promoted from clinical associate professor to full

clinical professor.

Apparently Nils Olsen didn't properly notify the

administration cent- -- the central university

administration of what he had done and what the faculty

had done, so I -- I assumed that this was a clerical -- a

clerical correction by Nils and he never informed me of

this, but that's what this is.

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Q. Okay. When did Nils Olsen step down as dean and Makau

Mutua take over?

LAW JUDGE: Let's go off the record.



LAW JUDGE: Back on the record.


Q. When did the -- did the dean change in the law school?

A. I -- I wasn't -- you know, I wasn't totally aware of

when -- of when Nils Olsen stepped down. Apparently --

and this memo that you just gave me before is dated

September 3, 2007 and it says that Nils Olsen had -- had

already told the administration of the university that he

was stepping down as dean.

All I knew from my perspective is sometime during

2--- -- the fall semester of 2007 it became known to the

faculty that Nils Olsen was stepping down for reasons of

health -- personal reasons and reasons of health and that

the university was gonna launch a search -- a new nation-

-- a nationwide search for a new dean.

We didn't know -- weren't consulted as to who was

going to be stepping -- who was going to be running the

law school in the interim because it also became known

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that Nils was stepping down in mid year, so there was

gonna be an interim dean appointed on -- as of January 1,

2008, but we didn't know that it was gonna be Makau Mutua

till pretty late in the game, like I think it was

December of 2007 before we finally found out.

Q. Okay. So, let's turn our attention now to what happened

in March of 2008. This is a copy of what is attached to

the Petition, but entered separately as Joint Exhibit 2,

which is a series of e-mails from Cheri Tubinis to you --

or at least starting with those.

Who is Cheri Tubinis?

A. She was Nils Olsen's secretary and -- and when -- when

Makau Mutua became dean she -- he inherited her as his

secretary.

MS. VANCE: I'm sorry. I couldn't hear that

last --

THE WITNESS: He inherited -- he inherited

Cheri Tubinis as his secretary initially.

LAW JUDGE: Hold on a second.

Tubinis, T-U-B-I-N-I-S.


Q. Can you tell us what happened -- can you -- can you walk

us through what happened with the series of e-mails that

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came out in March of 2008?

A. Can I provide a little bit of a background, so that this

can make sense?

Q. Okay.

A. It's a little bit complicated. I was on a committee

called the A.P.P.C., the Academic Planning and Program

Committee, which is the law school equivalent of -- of a

curriculum committee. One of the things we were charged

with doing was reviewing the research and writing

program. When Makau Mutua came in as dean, I had high

hopes that I was gonna succeed with him in doing

something that I hadn't able to do with Dean Olsen, which

was enhancing the job security and salaries of the legal

writing instructors.

So, I told the instructors that they should set up a

meeting with Makau Mutua directly and present their case

to him. They did this -- and without me present -- so,

they did this -- I think during the week of February 7,

2008 they met with Dean Mutua and I think with Vice Dean

Jim Gardner. Follow-up to that was a meeting of the

A.P.P.C. I think it was probably around February 20,

2008 and on the agenda was the research and writing

program, so I assumed that we were gonna talk about, you

know, the issues of staffing the legal writing program

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and an upgrade in the status and salary.

Instead what Dean Mutua did was he told the committee

that he had spoken to the research and writing

instructors and that they were very unhappy with the

direction of the program, which really meant they were

very unhappy with me, and then he went into sort of a

very demeaning and hostile speech toward me saying that

the research and writing program was a disgrace or it was

a dark corner that the faculty had been closing its eyes

to for too long and that he was -- time for the faculty

to take it back, so I mean, I was like totally appalled

at being spoken to this way in public. I thought it was

really crude and offensive and hostile and abusive.

He also gave me a writing assignment that he was -- I

mean, he just gave me ten days to prepare a

self-assessment report about the program, the status of

the program, and also a profile of each of the individual

teachers, so he could know who he was dealing with the

next time he had to speak to these instructors. So, I

did that assignment for him. I finished it, I think it

was February 29th. I'm not sure exactly. It was ten

days later and then I didn't hear anything from him after

that.

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Meanwhile the legal research and writing program was

engaged in what we call moot court. This was like the

high point of the spring semester where we are --

students are giving their appellate arguments in front of

panels of outside judges, so it's a pretty big

administrative and logistical job to make all this

happen.

After this happened it was spring break and I still

hadn't heard from Dean Mutua in response to my -- the

document I had given him, which I expected that we would

discuss and -- and I could explain what I had been doing

with the program, respond to what the instructors said

about me or hadn't said about me, and just have a -- you

know, a useful dialogue about where we were going with

this.

In the middle of spring break -- well, I should say

at the beginning of spring break, Monday, March 10th, I

was out of town and I got this e-mail from Cheri Tubinis

saying that she wanted -- that Dean Mutua wanted to meet

with me in the next few days and if I'm out of town that

we should have a phone meeting. I said -- answered her

and said, you know, I'm out of town, let's meet when

we -- when I'm back. I didn't really understand what the

urgency was. He insisted on, you know, talking to me on

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the phone and I said let's talk in person next week. I

mean, we sort of reached an impasse on this.

So, on Wednesday I received this e-mail -- Wednesday,

March 12th, I received this e-mail from Makau Mutua

request -- subject line: Request for your resignation as

director. And he basically gave me 24 hours to resign or

be fired. He said quote "you will stand relieved of your

duties as director if I do not hear from you by noon

tomorrow". So, I didn't think it was appropriate to do

that. I didn't feel -- I felt like I was being bullied

into resigning and I said that I wasn't going to resign.

I -- I responded to him by e-mail that -- that afternoon,

Wednesday, March 12th.

So, the following day, Thursday, he sent me the

e-mail saying that quote "this is to confirm to you that

you have been relieved of your duties as director of the

research and writing program as of noon today". And so

that was what the sequence of the e-mails was about.

Q. Okay. Let me go back -- well, strike that.

In that e-mail of March 12th -- attached to what you

just were reviewing -- in Makau's e-mail to you he says I

have no choice but to let you know that I'm removing you

as director. I have concluded the program to move in a

different direction under new leadership. I'm sorry.

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That's in his request -- no -- you will stand relieved of

your duties of -- I'm sorry.

So, the second to last page.

A. Right.

Q. He says to you he wants you to resign because the program

is going to move in a different direction under new

leadership?

A. Yes.

Q. And you said that you wrote a report on the status of the

program?

A. Right.

Q. Was -- was the -- was there in contemplation in these

discussions and memos between you and Makau before this

e-mail was sent to you that it was gonna move in a

different direction?

A. No.

Q. Okay.

A. We -- we didn't really have any dialogue about it. He

just asked me to write a report and I tried -- I think I

wrote a very thorough report explaining what I had been

doing with the program, trying to inform him and educate

him about how the program was structured, what I thought

the problems with the program were, what my

recommendations for where the program should go in the

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future.

And I also wrote up, like I said, an assessment of

each of the instructors, which it -- which I based on

re-reading all of their course evaluations over the past

two years, so this was quite a substantial document. It

took me quite a bit of time and I just assumed that we

were going to discuss it. It seemed like -- it seemed to

me really unfair and unprofessional to demand this kind

of report from a person on such a short deadline and not

even to -- I don't even know if he read it, but if he

read it he certainly didn't give me a chance to discuss

it with him and that's why I felt -- in combination with

the way he had spoken to me in public at the A.P.P.C.

meeting combined with his disregard of the report he

demanded me to write, I felt that he was being

unprofessional and hostile and I -- I -- I wasn't

inclined to resign in the middle of spring break by noon

tomorrow just because he asked me to. I had never heard

of anything like that.

I would have resigned if he had spoken to me and

explained to me some civil and acceptable reason because

I -- I had no desire to stubbornly cling to a position

and work for a man who didn't want me to be in the

position. I would have turned the program over to

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someone else, but...

Q. Okay. Do you know why this had to be done over spring

break?

A. No. In fact, the bulk of the legal writing work for the

spring semester was done. I mean, the program was

basically finished for the year. The only remaining

assignment we had for the students was a rewrite of their

appellate briefs, so at that point we were all, you know,

sort of -- you know, at that point the pressure was

really off and we had all the time in the world to -- to

discuss things, talk about them, plan and strategize for

next year. There was certainly no reason to demand my

resignation in the middle of spring break.

Q. Let me go back to -- to your comment about the report

that you said you submitted. You indicated that you had

talked to Nils and you were hoping that Makau would get

on board with expanding the length of the -- of the

instructors' appointments and increasing their salaries.

Was there also a discussion with either Nils or Makau

about modifying the pro- -- the program itself -- the

research and writing program?

A. No --

Q. Was that on the table.

A. -- we never had any -- any discussions about changing the

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curriculum of the program. I had recommendat- -- I had

recommended to Makau and to Vice Dean Sue Mangold -- I

never spoke direct -- directly to Nils Olsen about this.

I strongly recommended extending the program into the --

into the second year of law school. I thought that we

should have a third semester of legal writing. We never

had any discussions at all about changing the curriculum

of the program. It was just nothing that anybody ever

wanted to talk to me about, but I would have been happy

to talk to anybody who wanted to about changing of the

sequence of assignments or the way the -- the way the

skills were taught.

What was on the table and which I -- what was on the

table with both Nils Olsen and with Makau Mutua was the

staffing of the program. That was my number one

priority. I wanted to have instructors with renewable

contracts and I wanted to have instructors who had

equitable pay and so that was something where I had -- I

had hit a brick wall with Nils Olsen on. He just, you

know, didn't see it my way and I had great hopes that

Makau Mutua would be more liberal and more generous with

the -- with the writing faculty.

Q. Okay. And, again, to clarify you said that had you had a

in-depth discussion with Makau about you -- his desire

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for you to resign your position, you said I -- I might

have resigned my -- or I would have resigned my position

as director of research and writing, not as clinical --

A. Right. If he --

Q. -- professor?

A. -- if he had told me that I want to have a new person

look at this or I don't think you work well with, you

know, my vice dean for academic affairs would -- you

know, would you resign and move onto some other projects

for the law school, I would have said yes. And I

certainly recognize those are valid reasons.

Q. I'm going to show you what's been introduced into the

record as Joint Exhibit 3. This is an e-mail that Cheri

Tubinis sent out on behalf of Makau to the fac- -- to

the -- to all the faculty?

A. Yes, it looks like it went to the entire voting faculty.

Q. Do you know -- I don't know if you recall now -- if

March 13th was during spring break or after spring break

was over?

A. That was the same day -- that was Thursday of -- that was

Thursday of spring break, so -- it was the day after he

informed me that I was being removed as of noon on

Wednesday, so this was Thursday he sent this e-mail

out -- the next day.

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Q. While spring break was still going on?

A. Yes.

Q. Okay. And when you returned the following week to --

to -- school was back up and running, did -- was there

any discussion with any of your colleagues about this

e-mail that Makau had sent out?

A. There -- there was -- generally I felt that people were

embarrassed to even talk to me. I felt that it created

an inference that some scandal had been uncovered and

that I was being unceremoniously removed in order to hush

up some problem.

It was -- I mean, this was highly unusual. Nobod- --

nobody in the school -- certainly not in my eight years

there -- nothing like this had ever happened before.

Q. Nothing like this meaning what?

A. Somebody being removed summarily from their position

in -- in such a -- I would say in a -- almost as an

emergency measure in the middle of the semester without

their consent.

Q. Did the issue go before the A.P.P.C. -- that committee

that you spoke about?

A. I tried to bring it up before the committee, but Makau

Mutua wouldn't allow it to go on the agenda. I tried to

raise it in the first we met at -- following the -- the

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first time we met as a group following this incident and

he basically told me to shut up, I'm trying to -- he said

I'm trying to run a meeting, be quiet.

Q. After spring break did you ever meet with the dean to

talk to him about your removal as director?

A. No.

Q. Did he ever provide you with anymore detail in terms of

the reasons for your removal other than what was in the

e-mail that he sent to you and the faculty?

A. No.

Q. What was the status of the research and writing program

in March 2008 when you were removed?

A. Well, the status was status quo. When I was removed the

program -- we finished the spring semester and went into

the next year 2008 -- '0- -- 2008 and 2009 with exactly

the same instructors and exactly the same curriculum.

The difference was that in the interim he had

promo- -- Dean Mutua appointed Professor George Kannar to

be -- oh, the -- the -- the way he put it was to keep an

eye on the program, so he was effectively acting in my

capacity as -- as a -- sort of an interim director.

Q. Okay. If the program was actually going to be changed,

do you know if the dean could unilaterally do that on his

own or would it require a faculty -- a faculty vote?

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A. Well, I don't think there is anything that would preclude

the -- the dean, you know, doing whatever he wanted to in

his administrative capacity as running the law school,

but in point of fact I don't think that Dean Mutua is an

expert on legal writing -- or legal research and writing

or had or has any particular ideas about how it should be

taught, so the way we approached it was to delegate the

matter to a committee to study the -- to study the

program and to make recommendations for -- for change.

So, while I was still involved in the program in the

earlier part of the spring semester of 2008, we had a

subcommittee on the A.P.P.C. to study research -- the

research and writing program and it was comprised of me,

Professor Rebecca French and Professor Errol Neidinger.

That's E-R-R-O-L N-E-I-D-I-N-G-E-R. The three of us

were working together.

Since I was the one who was, you know, most familiar

with the program I sort of guided that subcommittee to

start focusing first on the staffing of the program and

subsequently we planned to also talk about the

curriculum. When I was removed as director I stopped

participating in that subcommittee and I assume that

Professors Neidinger and French continued to work on the

project.

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Q. Okay. And let me show what's been entered into the

record as Charging Party Exhibit 5, which are the minutes

of a May 7, 2008 law school faculty meeting.

Who keeps the minutes of the meetings?

A. For this meeting it was either -- well, it was either

Cheri Tubinis, the dean's secretary, or Tim Conti,

C-O-N-T-I, who was also an administrative assistant in

the dean's office. I'm not sure which one was keeping

these -- this set of minutes.

Q. Do the minutes get -- then get disseminated to the

faculty at some point?

A. Yes.

Q. Okay. And if I can draw your attention to No. 5 of the

minutes -- I'm sorry -- No. 4 of the minutes. It

introduces a resolution. Can you tell us -- to appoint

someone to be charged with the responsibility to evaluate

the current research and writing program, and to the

extent determination is made, the changes in the program

are necessary to propose changes -- is this something

that came out of the A.P.P.C. subcommittee

recommendation?

A. Yes. I -- I was -- it -- it became clear to me that

Dean Mutua didn't want me to be participating on the

A.P.P.C. anymore, so I sent him an e-mail saying that I

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wasn't sure what my role was on the A.P.P.C., since I was

no longer director of the writing program that I wouldn't

participate in any of these further discussions unless

he -- if he specifically asked me to.

So, at this point I was no longer on that committee

or involved in this process, but this came out of the

A.P.P.C. as a recommendation to the full faculty.

Professor Steinfeld, I think, actually drafted this

resolution and it was -- it was -- what they resolved to

do was to appoint somebody to study the matter and to

make recommendations for changes to the extent that

changes to the program are deemed necessary.

So, this is where the matter was left at the end of

the spring semester of 2008.

Q. Okay. So, at that point it wasn't clear whether there

would be any change in direction of the program?

A. Exactly. This was -- this was a -- basically

commissioning a study to see what's going on with the

program and where it should be going. These -- these

types of programs are always sort of a work in progress,

so over the years there are changes in the program and

adjustments and this was a -- sort of a checkpoint which

gave everybody a chance to look at what we're doing and

to see whether we're satisfied with our current efforts

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and if not what could be done to improve the program,

what resources the law school should be devoting to the

program and so on.

Q. Okay. And you said that George Kannar was appointed to

sort of watch over this process?

A. Yeah, the -- this -- this resolution gave the dean, you

know, instructions to appoint somebody to do it and the

person that the dean appointed was Professor Kannar.

Q. Okay. And I'm going to show you what's been entered as

Charging Party Exhibit 6. Is this how the faculty were

notified that George Kannar was the one who was appointed

per that resolution?

A. Yes. I mean, the resolution asked him to undertake the

study and also to sort of step into my shoes and

supervise the legal writing program in the interim, which

is what he did throughout the 2008-09 academic year.

Q. Now, do you know -- strike that. I'm going to show you

what's been marked into the record as Charging Party

Exhibit 7, which is the proposal -- which is George

Kannar's report to the -- to the law faculty?

A. Yes.

Q. It's dated April 15, 2009. Now, in the announcement that

Makau sent out in June of 2008 he indicated that George

would present his -- the results of his study in a

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proposal in the fall of 2008.

Do you know if that actually happened in the fall of

2008?

A. Yeah, it didn't -- it did not happen. George was a

little bit slow picking up on this, I think, and it took

him the entire year to get to this point, but there

weren't any other reports to the faculty on the -- on

the -- on the legal writing program.

Q. Until this document from April 2009?

A. Correct.

Q. Okay.

MS. VANCE: May I have the last -- the last

question and answer read back, please?

LAW JUDGE: Sure.

{The last three questions and answers were read back by

the stenographer}.


Q. Do you know if the proposal that George Kannar presented

to the faculty actually was voted on and accepted by the

faculty?

A. Yes, it was.

Q. Okay. Now, I don't have the minutes of who was present

at this faculty meeting, but do you recall if you were

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present at the meeting in April 2009 when this was

presented?

A. I was present.

MS. VANCE: Can we go off the record for a

second?

LAW JUDGE: Sure. Let's go off the record.

{There was an off the record discussion at this point in

time}.


LAW JUDGE: Let's back on the record.

FURTHER DIRECT EXAMINATION


Q. So, let's go back on the record to clarify. The document

that you have that's marked as Charging Party 7 indicates

at the top that it's a proposed faculty resolution

recommended to the faculty for its early adoption by the

A.P.P.C. on April 15th. So, the A.P.P.C. voted on it

first and then it came to the full faculty?

A. Yes. This is an example of bad legal writing.

Q. Okay.

A. April 15th was the day the A.P.P.C. decided to move

forward with this. It went to the faculty on April 22nd.

Q. The 22nd.

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A. Yes.

Q. So, do you recall whether this would have been --

Charging Party 7 would have been sent to the faculty

before the faculty meeting on the 22nd?

A. Yes, the faculty had this. This was -- I mean, the cover

page was provided by George as legislative history and

the actual statute, so to speak, that was being proposed

was on the following page -- the faculty resolution. So,

George was explaining what the faculty was going to be

voting on. That's -- that's the cover page.

Q. And then your -- okay. I see there is a proposed faculty

resolution, which was what -- actually voted upon at the

April 22nd meeting?

A. And that's what appears in the fac- -- in the -- in

the --

Q. In the minutes?

A. -- in the faculty minutes.

Q. Okay. And I'm going to show you -- I don't have an extra

copy of this one -- what's been entered as R-4.

A. Yes.

Q. That's the minutes of the faculty meeting of April 22nd

that you just referred to?

A. Yes.

Q. Okay. And within that there is a reference to the

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resolution that's attached to Charging Party 7?

A. The -- it's the second page. Correct.

Q. Okay. And you were present at this -- at this faculty

meeting?

A. Yes.

Q. Okay. Now, this proposed faculty resolution that -- that

was approved by the faculty on April 22nd --

A. Yes.

Q. -- which is attached as Page 2 and 3 to Charging Party 7,

what's your understanding of -- of what it was doing to

the research and writing program, if anything?

A. My understanding of what this resolution did was to --

basically to create another layer of bureaucracy. A

person who was -- who was -- was -- was going to be

appointed a tenured or clinical professor to be

responsible for the pre-existing programs. It didn't say

anything about changing the pre-existing programs.

And that -- that's what -- essentially what George

was doing was recommending that either he or his

successor be given a permanent administrative position in

the -- in the dean's office to be in charge of moving

forward with what he had been doing that year and which

he hadn't really either begun or completed.

Q. Okay. And in what you refer to as the legislative

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history, the first page --

A. Yes.

Q. -- George states that it does not propose the creation of

any new programs for research and writing. Is that -- is

that what was discussed at the faculty meeting?

A. There was really very little discussion of this because

no --

MS. VANCE: Where are you referring?

MS. SINGER-BLUMBERG: I'm referring to the

first page of Charging Party 7. This -- the last

sentence of the second paragraph.

THE WITNESS: Yes, George presented this.

He was -- I think he was somewhat surprised that nobody

had any comments or questions about it. He just asked --

was silent for a while -- does anybody have any questions

about this, and I don't know if the fact that I was in

the room inhibited the conversation at all or -- it

was -- it was just basically authorizing the dean to go

ahead and appoint someone to either -- either to --

either to make his job permanent or to appoint someone

else to -- to -- to take over his job --


THE WITNESS: -- but it did not -- I mean,

he said that it does not propose the creation of any new

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programs.


Q. Now, you received a nonrenewal letter, which we've

entered into the record as Joint Exhibit 7, from Makau on

August 28, 2008 or thereabouts?

A. Yes.

Q. And this is a copy of that letter?

A. Yes.

Q. Prior to receiving this letter did the dean ever discuss

your non-renewal status with you?

A. No.

Q. Were you aware that your renewal was under consideration?

A. I knew that the dean was supposed to issue a -- an

extension of my three year contract as required by the

terms of my contract, so I knew I was gonna be getting

another letter. I didn't think it was gonna be a notice

of non-renewal. I thought it was gonna be a two-year

extension of my contract.

Q. But the first three years didn't expire until 2009,

right?

A. Right. So, I mean, at this -- at this point I didn't

expect to get any letter. I -- I expected sometime

during the course of the 2008-09 year I would receive a

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letter extending my contract for two years.

Q. I'm going to show you what's been entered into the record

as Charging Party Exhibit 8. These are the bylaws of the

law school faculty that were in place at the time that

you were non-renewed?

A. Yes.

Q. And I'm going to draw your attention to Page 8, No. 4.

A. Yes.

Q. Do you know if before you received a non-renewal letter

the committee on clinical promotion and renewal reviewed

your reappointment status?

A. No, they did not.

Q. Your non-renewal letter, Joint Exhibit 7, states that --

the first sentence of Paragraph 2 -- the law school

terminated the research and writing program such as it

was and is replacing it with the skills program.

Now, in August of 2008 had the research and writing

program been terminated?

A. No.

Q. As of August 2008, so that we're clear, the only thing

that had happened was that a resolution had been passed

that spring before --

A. Yes.

Q. -- to review and propose any changes, if necessary?

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A. A study had been commissioned essentially --

Q. Okay.

A. -- and that's all that had been done. The study hadn't

been reported back to the faculty. The faculty hadn't

discussed the study or voted on any changes under the

study.

Q. The non-renewal letter also states in the second

paragraph that all of the instructors in the defunct

program have been non-renewed and, therefore to be

consistent, since you have been an instructor in the

program you're being issued this non-renewal notice.

Were you an instructor in the research and writing

program?

A. No.

Q. Okay.

A. I mean, in the generic sense an instructor being someone

who teaches, I mean, every professor in the law school is

an instructor providing instructions, but as far --

instruction, but as far as my job -- my academic

appointment goes, I was a clinical professor. I was

never a research and writing instructor, so the terms of

their appointments had nothing to do with mine.

Q. How did your removal as director in March impact your

duties as a clinical professor, if at all?

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A. It resulted in my losing the three credit allowance

toward -- off of my teaching load as compensation for my

administrative responsibilities, so I was required to

teach three additional course credits.

MS. VANCE: Could I have that question and

answer read back, please?

LAW JUDGE: Okay. Go ahead.

{The last question and answer was read back by the

stenographer}.

MS. VANCE: Thank you.


Q. So, those three additional course credits you didn't pick

up in March though of 2008 -- midterm?

A. I picked them up in the spring of 2009.

Q. Okay.

A. In the spring of 2008 I taught six course credits. In

the spring of 2009 I taught six course credits.

Q. The other people in the program you said were

instructors, do you know if they were non-renewed as

well?

A. When -- this requires a little bit of background. Can I

explain? When the decision was made to go to long-term

contracts, initially under Dean Olsen and then

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subsequently under -- under Dean Mutua, there was a

debate about whether the old instructors could be

grandfathered into the improved jobs or whether we would

have to do a national job search and make them compete

for their jobs against outside candidates.

Both Dean Olsen and Dean Mutua decided that the jobs

had to be opened up to outside competition and in order

to do that the present instructors, who had all gone --

been teaching at the school for longer than three years,

had to receive non-renewal notices. These are known as

12-month notices within the law school. If they didn't

receive these notices then their jobs are automatically

renewed for a subsequent term -- a subsequent one-year

term.

So, as far as I know, in the spring of 2008 all of

the instructors received these non-renewal notices and

were also informed that they were invited to reapply for

their newly enhanced jobs.

Q. At some point after you were no longer director?

A. I was no longer director, so I wasn't directly involv- --

I was not directly involved in this -- in these -- these

letters --

Q. Okay.

A. -- or in this process.

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MS. VANCE: Could I just have a moment?

LAW JUDGE: Sure. Let's go off the record

for a minute.


in time}.





Q. Jeff, let's go back for a second. You said that when you

were removed as director in the spring of '08 you were

required therefore to pick up three extra credits?

A. Yes.

Q. And you did that in the spring of '09, not the fall of

'08?

A. I was already teaching six credits in the fall of '08.

Q. Okay.

A. I mean, from year to year it would vary. Sometimes I

would teach six in -- in the fall and three in the spring

and sometimes I would flip that, so -- I already planned

to teach a copyright course in the fall, so the -- the

other three credits were in the spring and gave -- also

gave us more time to schedule it because you'd have to

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put it on the schedule in time for the students to

elect -- to do their course selections.

Q. What did you end up teaching?

A. I taught IP Colloquium with Professors Reis and

Bartholomew, so it's a team taught course and it counted

as one credit and I taught -- a new course for me was

advanced legal writing/contract drafting, which was a two

credit course.

LAW JUDGE: For the record IP, I presume, is

Intellectual Property?

THE WITNESS: Yes.

LAW JUDGE: Thank you.

MS. VANCE: Can you clarify for the record

what the A.P.P.C. is? I think -- I don't know that we

have that for the record.

LAW JUDGE: Sure. The committee -- what

does A.P.P.C. stand for?

THE WITNESS: The Academic Planning and

Program Committee or -- I'm not sure -- Planning and

Program or Program and Planning. It's those two -- those

two words.

LAW JUDGE: Okay.

SPEAKER: Academic Planning and Policy.

MS. VANCE: Could we have that for the

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record?

LAW JUDGE: The Academic Planning and Policy

Committee. Does that sound right, Mr. Malkan?

THE WITNESS: That sounds right.

LAW JUDGE: Okay. Fair enough.

Go ahead.



Q. So, we were talking about the fact that the other

instruct- -- the -- all the instructors in the research

and writing program were non-renewed in the spring of '08

because they could not be grandfathered?

A. Right.

Q. They would have to be non-renewed and then reappointed?

A. Yes.

Q. Okay. Prior to that had you, in your role as director,

been involved in letting instructors go over eight --

eight or nine years that you held that -- eight years

that you held that position?

A. Yes, I was. But I had never let an instructor go who had

reached the point where they were entitled to a 12-month

notice.

Q. Were the research and writing instructor positions

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posted?

A. When I was the director?

Q. In -- in -- at some point after they were given a

non-renewal notice?

A. Yes. In the fall of 2008 George Kannar and Jim Gardner

undertook a process to do the job search for refilling

these research and writing positions.

Q. Okay.

A. So he --

Q. Let me stop you for a second. I'm going to show you

what's been entered into the record as Charging Party 9

and then I'm going to leave Charging Party 10 just so I

don't walk back up here.

A. Okay.

Q. So, Charging Party 9 appears to be minutes from the

faculty meeting on September 12, 2008. Is that where a

decision was made that the vacancies were going to be

posted for the research and writing instructor positions?

A. Yes. I wanted to correct what I said before as to

whether George Kannar ever reported back to the faculty.

I meant in writing. He did report back to the faculty

orally about the September 12th meeting, that they were

moving forward to advertise for the research and writing

instructor positions, and the reason he gave for moving

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forward so quickly was that they were afraid about a --

they were afraid that a university hiring freeze might

affect their ability to fill the jobs, so that they were

going to move forward as quickly as possible to do the

screening.

Q. The hiring freeze because of the budget situation?

A. Apparently.

Q. Okay. And Charging Party 10, which I also left with you,

is that the posting that went up for the research and

writing instructors?

A. Yes. This was the posting that was listed on George's --

or posted on George's behalf on the legal writing list

serve, which is a list serve that most people in the

legal writing community subscribes to. So, this is

usually the best way to get, you know, a very broad

national cross section of applicants for a job.

Q. Do you know if it actually was posted on the My U.B. or

the U.B jobs website as well?

A. Yes, it was -- it was also posted on U.B jobs. In fact,

in order to apply for the jobs the applicants were

required to fill in the application form electronically

on the U.B. jobs website. So, I -- as I recall, a

version of this advertisement is -- an abbreviated

version was -- appeared on the U.B. jobs website.

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Q. Okay. Now, in your non-renewal letter, which is Joint 7,

Makau indicated that he had -- in the -- in the second

paragraph that he had non-renewed all the instructors and

that they would be considered for instructional positions

in the new, what he called, skills program if they

applied and to be consistent he would welcome you to

apply as well?

A. Yes.

Q. And you, in fact, did apply?

A. Yes, I did.

Q. Now, I'm going to show you what's been put into the

record as Charging Party 11 and Charging Party 12.

Charging Party 11 is post your non-renewal date, right?

A. Yes, this was subsequent.

Q. Okay. So, you applied for the position and were you

given an interview for the position?

A. No.

Q. Did anyone talk to you about your qualifications for the

position?

A. No.

Q. Was there any communication between you and George Kannar

or someone from the dean's office prior to -- about your

application prior to your receipt of the letter in March

of 2009?

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A. I may have mentioned to George Kannar that I was applying

for the job and I may have explained to him why. I

wanted to stay on the friendly -- on friendly terms with

him and so I probably did mention to him that I'm an

applicant for the job and I may have spoken to him about

why I was applying for the job.

Q. Okay.

A. I don't really recall if he gave me any response. He --

he took some pains to try and distance himself from the

non-renewals, so he didn't even want to talk about it

with me.

Q. Was there a discussion about your qualifications or

your -- whether you -- the extent to which your

application had been considered before you received the

decision in March of 2009?

A. No. There was no discussion at all.

Q. Do you know offhand if the other instructors applied that

had been non-renewed?

A. I know one of them didn't apply and as far as I know all

of the other instructors did apply for the -- to be

reappointed to the positions that they felt they were

presently occupying.

Q. Okay. Do you know if they were -- received interviews

for the positions?

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A. As far as I know every single one who applied was fully

considered and received interviews for the position.

Q. Okay.

A. Including, I think, visits to their classrooms and

evaluations of their teaching performance.

Q. Now, that decision was made in 2009, so it was for

employment in March -- in -- for 2009-2010 --

A. Yes.

Q. -- is that when the new instructors would start?

A. Yes. But the -- the hiring process took a lot longer

than they anticipated, but I think that the concern about

the budget cap disappeared somewhere along the way, so

they took longer to do it.

Q. And to your knowledge do you have the qualifications to

teach what was offered in 2009-2010 in the research and

writing program?

A. I'm certain that I have the qualifications to -- to teach

any -- any variation of a legal research and writing

course.

Q. Okay. I want to switch tracks. You said you hold a

clinical appointment in the law school -- or you did

actually until August of 2009?

A. Yes.

Q. Were there other clinical faculty in the law school?

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A. Yes, there are three clinical professors and a number of

clinical instructors. I'm not quite sure how many

instructors there are, but there were three people who

had the -- had the same status and -- and rank as I did.

Q. Do you know who they are?

A. The senior -- the -- the senior person is Professor

George Hezel and it's H-E-Z-E-L. The second person in

seniority is Professor Tom Disare, D-I-S-A-R-E, and the

third person is Professor Suzanne Tomkins, T-O-M-K-I-N-S.

Q. Do you know -- strike that.

We introduced into the record as -- Charging Party 8,

which is before you, is the bylaws and the standing

orders of the law school --

A. Yes.

Q. -- and in that document there is a reference to the

Committee on Clinical Promotion and Renewal?

A. Yes.

MS. VANCE: What exhibit?

LAW JUDGE: Charging Party No. 8.

What page are you on?

MS. SINGER-BLUMBERG: Page 8.


Q. You already testified that before your -- a decision was

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made on your non-renewal that you -- your filing, your

status did not go before the committee?

A. That's right.

Q. Do you know if any of these other clinical professors'

files have gone before the committee before a decision

has been -- has been made on their --

MS. VANCE: Objection. Relevance.

MS. SINGER-BLUMBERG: -- renewal?


LAW JUDGE: I'm going to allow it.

Go ahead.

{Objection overruled}.


THE WITNESS: Yes, Professors Hezel and

Tomkins both had contracts that were -- that were

expiring on the same exact day as mine, April -- no,

August twenty- -- August 31, 2009 and they were both

brought before or -- or considered by their -- by this

committee on April 21st, I believe. The same day as the

faculty meeting that you referenced earlier.

MS. SINGER-BLUMBERG: April 21, 2000 and --

THE WITNESS: 2009.

MS. SINGER-BLUMBERG: -- 2009. Okay. May

we mark this for identification purposes?

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LAW JUDGE: For identification purposes at

this point I am marking as Charging Party No. 16 a

one-page document. It's a memo dated April 6, 2009 and

I'm going to ask for some help on pronouncing the name.

It's Tony --

MS. SINGER-BLUMBERG: Szczygiel.

LAW JUDGE: -- Szczygiel and it's spelled

S-Z-C-Z-Y-G-I-E-L. That's the from. The to is the

Committee on Clinical Promotion and Review. Re: Contract

renewals for clinical professors Suzanne Tomkins and

George Hezel.

Again, it's marked at this point only for

identification as Charging Party No. 16.

{The document referred to, ChargingParty Exhibit No. 18, was markedfor identification}.

MS. VANCE: May I have a moment to review

it, please?

LAW JUDGE: Sure.




Q. Professor Malkan, I'm showing you what's been marked as

Charging Party Exhibit 16 for identification purposes.

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Have you ever seen this document before?

A. Yes.

Q. Okay. And can you tell us where you would have seen it?

A. It was sent as an e-mail attachment to the whole faculty

and I think a copy was put in our mailboxes along with

copies of documents pertaining to the contract renewals

for George and Sue.

Q. And to your knowledge did the Committee on Clinical

Promotion and Review meet and review these two files?

A. Yes. I should clarify that this C.C.P.R., clinical --

Committee on -- Committee on Clinical Promotion and

Renewal is the counterpart to what used to be called the

Committee on Promotion and Tenure, so it's basically the

same committee. They just -- when they revised the --

the faculty bylaws they decided to call it by this new

name when -- when the committee is considering clinical

professors rather than doctrinal professors.

So this committee, which was comprised of all of the

tenured clinic- -- professors and clinical professors on

the faculty, was called into session on April 21st, I

think we said, to vote on the contract renewals for

Professors Tomkins and Hezel.

Q. And then give a recommendation to the dean?

A. This -- this memo says that the dean will be asking you

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to recommend renewal, so I think the dean's rec- -- the

dean and -- and Professor Szczygiel were recommending

to -- that the faculty approve the contract renewals of

these two professors --

Q. Okay.

A. -- and so the faculty -- the recommendation then bounced

back to the dean with instructions to act upon it.

MS. SINGER-BLUMBERG: I would move to enter

it in as an exhibit.

LAW JUDGE: Ms. Vance, any objection?

MS. VANCE: Could I have a moment?

LAW JUDGE: Sure.

MS. VANCE: No objection.


LAW JUDGE: Without objection Charging Party

No. 16 is entered into evidence. As earlier described,

it's a one-page memo with the date of April 6, 2009.

{The document referred to, ChargingParty Exhibit No. 16, previously markedfor identification, was entered intoevidence}.

LAW JUDGE: Go ahead.


Q. Were you ever told why your case didn't go before the

committee?

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A. No.

Q. Are you currently employed?

A. No.

Q. Have you attempted to obtain employment?

A. Yes.

Q. And what have you done towards that end?

A. Well, starting in late October of 2008 I applied for all

of the jobs in legal writing for which I felt that I was

qualified or would fit -- fit my personal needs, so I

applied for a number of jobs. I -- I received callback

interviews for three of them.

One was at a new law school in -- in -- in

Charleston, South Carolina called the Charleston School

of Law. Another one was the Touro Law School in East

Central Islip Long Island and the third one was at

another new law school called the Charlotte School of Law

in Charlotte, North Carolina. So, I -- those were all

three callback interviews and I -- which I was a finalist

for all of those jobs.

Q. Do you know why you weren't given any of them?


LAW JUDGE: I'm going to sustain that.

{Objection sustained}.

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Q. Have you ever heard the dean share his view of unions?

A. Yes.

Q. When?

A. The very first faculty meeting after he was appointed to

the interim dean. It may have been late January or early

February of 2008.

Q. And what was the discussion?

A. The discussion was in the context of Professor Diane

Avery, who is our labor law specialist on the faculty,

and she was -- she was speak- -- she spoke to object to

the commenter's treatment of the secretaries. After he

became dean he changed their -- their -- their work

environment by consolidating them into -- into two -- two

to an office and he also changed their work schedules and

so they apparently had gone -- complained to their union,

CSEA, about these changes in -- in their terms and

conditions of employment.

MS. VANCE: Object- -- may I just -- was

Professor Malkan at this meeting? I'd ask what -- lack

of foundation -- I'd ask if there is a foundation that's

been laid that he was there?

LAW JUDGE: I think we need to get a little

background as to what lead to the comments that the dean

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allegedly made regarding all this --

MS. VANCE: Right.

LAW JUDGE: -- stuff with the secretaries.

MS. VANCE: Of what -- he was about to say

what the secretaries said or what the dean said, but I

just didn't know foundationally if Professor Malkan was

at this meeting.

MS. SINGER-BLUMBERG: We can clarify. Were

you present at that faculty meeting?

THE WITNESS: I was present at the faculty

meeting and reporting what Professor Avery said.

MS. SINGER-BLUMBERG: At the --

THE WITNESS: Right.

MS. SINGER-BLUMBERG: -- faculty meeting?

THE WITNESS: Right.

MS. VANCE: At which Dean Mutua was also

present?

THE WITNESS: Yes.

LAW JUDGE: Okay. Go ahead.

THE WITNESS: So, after -- after

Professor Avery said her piece, Dean Mutua became very

angry and he said that -- he took it as a personal

affront that the secretaries had gone to the union to

complain about him and he said that he is a world

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renowned human rights advocate, that he spent his -- his

life pursuing causes of human rights and he took personal

offense to the fact that they would go over his head and

talk to the union about something that he had done.


Q. And that you said was in -- when?

A. That was -- I'm not sure of the exact date of the faculty

meeting. It was either late January or sometime in

February of 2008. I'm -- I'm pretty sure it was the

first faculty meeting he presided over after he became

interim dean.

Q. Okay. And you referred to him as interim. At what point

did he go from interim to dean?

A. The -- the -- the law school and the university did a

national job search to find a replacement for Nils Olsen

and the job search failed, so in the late -- end --

toward the end of the semester -- I think it was May

2008 -- the job search was abandoned and the -- the

provost of the university came over to the law school and

explained to us that the -- that the university's

consultant on the job search told him that it was

impossible to go back into the job market and renew the

search the following year and so there would have to be

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sort of a resting period before they go out to look for a

permanent dean and so he was -- he proposed that

Dean Mutua be installed as the dean for another

three-year term and at the end of Dean Mutua's second

year as the dean that the law -- that the law school

would announce once again that it was gonna announce --

do another nationwide job search to find a real permanent

dean.

Q. Okay.

A. So, that's what happened in May 2008. There was some

discussion on the faculty as to whether they were being

presented with a fait accompli or whether -- and

whether -- whether this approach complied with the A.B.A.

requirements. After a lot of discussion and debate, the

faculty decided to acquiesce and so Dean Mutua was

appointed to the three-year term.

Q. Do you recall how many other faculty members were present

at that first faculty meeting where this discussion was

had about the union activity of the secretaries?

A. Probably about -- probably about 25, I would think.

Q. Okay. At what point did you seek assistance from your

union representation -- from your union?

A. It was shortly after I was removed as director, so it

would be in probably late March of '08 -- 2008.

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Q. And after that initial contact with the union, did you

make attempts to contact the dean directly anymore?

A. No.

Q. How about the dean's -- the -- the vice dean?

A. No.

Q. And why was that?

A. I thought it would -- it would be futile to have -- to --

to ask for anything else. I felt that the best way to

proceed would be through intermediaries. I had also been

advised by a couple of the professors and staff people in

the law school that it was important for me to involve

the UUP at the earliest possible time, so that there

would be a record of what was happening with my job

situation.

Q. Do you recall if at any point you were advised whether

your clinical professor appointment was in jeopardy after

you were removed as director?

A. I never received any such advice, no.

Q. I have one last exhibit to show you -- actually two;

what's been put into the record as Charging Party 13 and

Charging Party 14. Charging Party 13 is the Fall 2008

schedule and Charging Party 14 is the Fall 2009 schedule.

And, again, you were told that -- both at the time

you were removed as director and then again in August of

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'08 -- so before the fall '08 schedule was underway --

that the program had been modified -- actually terminated

and a new program for research and writing was going to

be undertaken in terms of the skills program.

Can you just explain to us based on the -- first of

all, explain to us the exhibit -- the -- the three-page

exhibit with different sections?

A. Okay.

LAW JUDGE: We're looking at Charging

Party 13 right now?

MS. SINGER-BLUMBERG: Yes, let's start with

Charging Party 13.

THE WITNESS: That's the 2008 --

LAW JUDGE: Yes.

THE WITNESS: -- exhibit?

MS. SINGER-BLUMBERG: Right.

THE WITNESS: Okay. The way the law

school -- the first year is -- is scheduled the first

year class is divided into three sections, which are

designated Section U, B and L and within each of these

sections the students are assigned to all their

substantive first year courses and -- and research and

writing sections as well. So, this is the schedule for

the Fall 2008 semester.

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Q. And how does it compare to the Fall 2009 schedule?

A. As far as Section L goes, which is the relevant section,

in Fall 2008 I was -- I taught section -- at the -- I --

I -- I taught Section L-4 of research and writing. In

fall -- in Fall 2009 there was still a Section L-4 of

research and writing and the instructor's name was

Patrick Long.

So, this says to me that the same section of the same

course that I taught in the fall of 2008 was taught by a

new instructor in the fall of 2009. That was my

instructional position in the legal research and writing

program and it appears that it still exists, except

filled by another person.

MS. SINGER-BLUMBERG: Okay. I just need a

minute.

LAW JUDGE: Sure. Let's go off the record

for a minute.


in time}.



MS. SINGER-BLUMBERG: Nothing further,

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{ Malkan - Cross - Vance } 96

subject to redirect.

LAW JUDGE: Ms. Vance, I presume you'd like

a few minutes to collect your thoughts. There was --

MS. VANCE: I would if --

LAW JUDGE: -- a lot --

MS. VANCE: -- you don't mind.

LAW JUDGE: -- a lot of testimony there.

Let's do this. Let's take about a ten to fifteen minute

break. I have twenty of four. Let's try and get back on

the record by about five to four, if we can. Four

o'clock at the latest, okay. So, we're off the record.


in time}.


LAW JUDGE: Let's go back on the record.

When we left off Ms. Vance was prepping for

Cross-Examination. Ms. Vance, the floor is yours.


CROSS EXAMINATION

BY MS. VANCE:

Q. Professor Malkan, just to clarify one point, you

testified, I believe, that Professors Hezel and Tomkins

went before the Committee on Clinical Promotions and

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Renewal; is that correct?

A. Yes.

Q. Okay. Were they -- did -- were they involved in the

research and writing program at all?

A. No.

Q. Now, did they teach in clinics?

A. Yes.

Q. Okay. Did you teach in any clinics?

A. No.

Q. Now, when you were -- when you received word from the

dean on March 13, 2008 that you had been removed as the

director of the research and writing program, what -- I

believe it's your testimony that you then asked for a

meeting with the dean or asked for some clarification

from the dean as to why he had taken this action against

you --

A. I think --

Q. -- is that correct?

A. -- I think that asking for a meeting is what I did before

I received the e-mail removing me as director of the

program. In other words, I thought we should have a

face-to-face meeting and not a telephone conversation

about it.

Q. Okay. So -- but you're saying that before you were aware

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or before you had received the notice that you had been

removed as director, you asked the dean to sit -- to

discuss with you why he -- you wanted to sit down with

the dean to discuss whatever it was he wanted to discuss

with you?

A. Yes, I -- I think -- I think that was the gist of the

e-mail exchange I had with his secretary initially was --

was that I don't want to talk to him on the telephone. I

think we should sit down face to face to talk about

whatever it was.

Q. Okay. Now, when -- then once you received the notice

through the e-mail of March 13, 2008 that the dean had

relieved you as director, what -- did you ask for -- did

you contact the dean's office or contact anyone like

employee relations or anyone else to ask for a meeting

with the dean? What did you do?

A. Well, at that point when I got back to school after

spring break I spoke to a couple -- I spoke to various

people on the faculty, people I presumed to be friends or

colleagues, and a couple of them advised me that I -- the

next -- my next step should be to talk to the UUP and

bring them into the circle, so my next step was to

contact Paul Zarem- -- Paul Zaremba, Z-A-R- --

Z-A-R-E-M-B-A --

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MS. SINGER-BLUMBERG: K-A.

THE WITNESS: -- K-A, Zaremka, who is the

faculty grievance representative for UUP, and he called

Tara Singer-Blumberg in as the labor relations specialist

and had a meeting with them to ask them how I should

proceed.

BY MS. VANCE:

Q. Okay. And then did you ever personally ask -- contact

the dean's office to ask for a meeting?

A. After then I believe that all of my -- all those actions

were taken on my behalf by the union.

Q. Okay. So -- let's see. All right. Now, I'm going to

direct your attention to Administrative Law Judge Exhibit

No. 1, which is the Charge. I can bring this up to you

to show you and I'm looking at paragraph -- well, twelve.

LAW JUDGE: I've got a copy.

He can take mine.

THE WITNESS: Okay.

MS. VANCE: Just read twelve and thirteen.

LAW JUDGE: Is that the details of the

Charge?

MS. VANCE: Yes.

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FURTHER CROSS EXAMINATION

BY MS. VANCE:

Q. So, when you look at Paragraph 12 is that -- it seems to

me that what you're telling me now is that that -- that

paragraph is not accurate; is that -- is that correct or?

A. Looking at this now I think I would probably reverse

twelve and thirteen. I think that subsequent to spring

break that numerous attempt- -- occasions -- numer- --

attempts were made to get the dean to meet with me, but

they were all done through an intermediary. I -- I

didn't do it directly.

Q. Okay. So, once you -- and Paragraph 12 says that you

understood you could be removed as director and then once

you remove -- it's -- it's implying that once you were --

you had already been removed as director and you

attempted to meet with the dean, so that's -- that's not

true, correct?

A. Say it again.

Q. Paragraph 12 indicates that you had already been removed

as director and then you had attempted on several

occasions to meet with the dean in order to discuss the

reasons for your removal and the dean refused to meet

with you, but what I'm hearing from you now is that

that's not true?

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A. It's true except what's -- what I -- what isn't said here

was maybe -- what isn't said here is that those attempts

were dir- -- were made through an intermediary, not by me

directly, because at that point I felt that I needed the

assistance of -- of a go-between. I didn't think I was

gonna make any progress with Dean Mutua, so I --

Q. So, what --

A. -- asked for help.

Q. -- so, what you're saying is that you did not attempt --

you personally did not attempt to meet with the dean?

A. I -- I don't know what you mean by personally. I mean,

it was me --

Q. I know what --

A. -- it was just -- you know, it was communicated to him by

Tara Singer-Blumberg.

Q. But -- okay. I understand you're saying that the union

got involved at some point and made attempts on your

behalf --

A. Yes.

Q. -- to -- to arrange a meeting, but just so we're clear,

is it your testimony that you personally never contacted

the dean's office or any other management person to -- to

set up a meeting?

A. I never -- I never -- that's true. I never -- I never

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had any communication with management, either of the law

school or at the -- or from the university from that

point forward. It was always through the intermediary of

the union.

Q. All right. So, that's why you say that you would reverse

Paragraphs 13 and 12. You would say that first -- you

know, what you did was once you were removed as director

you contact -- you -- you contacted the union and then

any attempts that were made to set up a meeting were done

by them on your behalf?

A. Exactly.

Q. And that you never -- you personally --

A. Exactly.

Q. -- never did that?

A. At that point as soon as I -- I got back from spring

break and I saw the -- you know, what the situation was,

I -- I followed the advice of my colleagues and

contacted, like I said, the union representatives and set

up a meeting --

Q. Okay.

A. -- with them.

MS. VANCE: Thanks. Nothing further.

LAW JUDGE: Nothing further?

MS. VANCE: Nothing further.

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{ Malkan -- Re-Direct -- Singer-Blumberg } 103

LAW JUDGE: Okay.

MS. SINGER-BLUMBERG: Just one point of

clarification.

LAW JUDGE: Thank you.

RE-DIRECT EXAMINATION


Q. Hezel and Tomkins taught in the clinic, but did they hold

the same title as you did, clinical professor?

A. Yes, they were the same academic rank as -- as me, but

their teaching assignments were through the clinics and

through courses related to the clinics. My teaching

assignment was in the legal writing program but, if I

might add, this is not unusual in the legal writing

field.

Legal writing professors throughout the country

receive long-term job security under the same A.B.A.

provision that the clinical professors do, 405-C, and in

many law schools, including Cornell and the University of

Michigan, all of the legal writing professors have the

academic title of clinical professor.

MS. SINGER-BLUMBERG: Okay. Thank you.

Nothing further.

LAW JUDGE: Ms. Vance, anything further?

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104

MS. VANCE: No thank you. Nothing further.

LAW JUDGE: With that you are excused.

You may step down. Thank you.

{Witness excused}.

LAW JUDGE: Ms. Singer-Blumberg, why don't

you collect your --

MS. SINGER-BLUMBERG: My papers?

LAW JUDGE: -- yes. Let's go off the record

for a moment.


in time}.


LAW JUDGE: We're back on the record

briefly. It's about 4:30 now. We've concluded with one

witness, both Direct and Cross today. It's quite

apparent we're going to need day two. I just checked my

calendar and I'm going to share some dates with the

representatives and ask them to get back to me as quickly

as possible, so that we can pick a date for day two and

with that we're off the record for today and adjourned.

{Whereupon, the hearing in the above-entitled matter was

adjourned at 4:30 p.m.}.

KAREN L. COSTELLO(518) 756-3198

105

C E R T I F I C A T I O N

STATE OF NEW YORK )

: SS:

COUNTY OF ALBANY )

I, _______________________, a Notary Public for

and with the State of New York does hereby

certify:

That the witness(es) whose examination is

(are) set forth herein was (were) duly sworn and

such examination is a true record of the testimony

given by the witness(es).

I further certify that I am not related to any

of the parties to this action by blood or by

marriage and that I am in no way interested in

the outcome of this matter.

IN WITNESS WHEREOF, I have hereunto set my

hand this ______ day of, ________________, 2010.

_______________________

January 15, 2010

Documents

PERB Transcript - Nov 17 2009