Law school Dean Makau Mutua resigns

Dean Mutua faces allegations of lying under oath in federal court

By SARA DINATALE
On September 24, 2014

Law school Dean Makau Mutua has resigned from his position, effective Dec. 19. Mutua said it was the right time
for him to leave his postion and continue to teach because hes accomplished what he set out to do as dean. He is
currently facing allegations of lying in federal court.
Courtesy of UB News Center

Law school Dean Makau Mutua has resigned. The resignation comes amid allegations
that he lied in federal court and in a state administrative proceeding.
The alleged lying under oath stems from a 2011 case filed by Jeffrey Malkan who says
the dean wrongfully terminated his contract as a clinical professor. Malkan had signed a
contract in November 2006 that stated he could only be fired for cause in accordance to
the law school accreditation standard. Two months after becoming dean, Mutua
terminated the contract.
The suit also alleges that Malkan was denied due process under the 14th Amendment.
Mutua, who has been dean for seven years, will step down officially on Dec. 19, but he
will continue to teach at UB as a SUNY Distinguished Professor and Floyd H. and Hilda
L. Hurst Faculty Scholar. Mutua is a Harvard graduate and a well-known leader in
international human rights.
Provost Charles Zukoski sent an email to faculty Monday announcing the resignation.
He did not mention the lawsuit in the email, but focused on Mutuas accomplishments
as dean, which include recruiting 22 new faculty members, offering more experiential
learning opportunities for students and fundraising $23 million.
I decided to step down because it was the right time: A seven-year tenure is twice as
long as the typical tenure for a law dean, and Ive accomplished what I set out to do,
Mutua said in a written statement to The Spectrum.
Faculty and students interviewed by The Spectrum offered tepid to scathing critiques of
Mutuas tenure and many students insist they have never seen Mutua on campus nor
interacted with him. In October 2010, the law school faculty attempted to hold a vote of
no confidence in Mutua, but the attempt was dismissed by then President John B.
Simpson and then Provost Satish Tripathi, according to email correspondence obtained
by The Spectrum in 2013.
Like many law schools across the country, UBs law school has been retrenching in
recent years and in March, the school announced its plans to shrink its incoming class
from 200-225 students to fewer than 200 and to reduce its faculty from 48 to 40.
The Malkan case began in 2011 and names both Mutua and law professor Charles
Ewing, who served as head of the law school grievance committee that heard Malkans
complaint. The federal case, in U.S. district court, is now at the stage of considering
summary judgment, which involves whether the case can go forward to trial. The
newest development in the case came in August when Ewing filed a motion to have his
case separated from Mutuas. In the motion, Ewings lawyers argue Ewing was an
innocent bystander, who got caught in the disagreements between Malkan and Mutua.
Therefore, Ewing has asked the court to separate his case from Mutuas to avoid
foreseeable spill-over effect and indelible prejudice, against him in light of the false
testimony allegations against Mutua.
Ewing could not be reached for comment, but on Tuesday Malkan told The
Spectrum Ewings involvement was marginal and that he wasnt responsible for the
wrongdoing. Malkan said his lawyers have put papers in to dismiss [Ewing] from the
lawsuit.
Ive been so frustrated for the last couple of years, Malkan said. I couldnt believe
Mutua was still in the deans office with these allegations over his head. Theres no way
a dean can function until his name is cleared.
The motion to separate the trials highlights the significance of the perjury allegations,
which stem from testimony Mutua gave regarding a faculty vote on Malkans promotion
to clinical professor at a Committee on Clinical Promotion and Renewal (CCPR)
meeting. Seven faculty members testified that the vote took place. Mutua said under
oath the vote did not take place, rather that it was a vote to retain Malkan as a director
of the Research and Writing program.
Mutua also testified former UB President William Greiner, who was a member of the law
school faculty, spoke at the meeting. UB law faculty members testified Greiner was not
at the meeting.
Malkan said that at the time of the 2006 CCPR meeting, Greiner was sick and not
regularly attending faculty meetings. Greiner died in 2009.
When Mutua was asked to produce Malkans promotion dossier an official document a
person up for promotion needs to prepare for the court, the dean said it had
disappeared. He said he didnt know what happened to it and it was missing when he
took over the deans office.
Malkan said Tuesday it was an obstruction of evidence.
Its unthinkable that a dean of a law school would commit perjury and subvert the
process and actually produce a miscarriage of justice, Malkan said.
The university said it does not comment on pending litigation.
The Spectrum reached out to numerous law professors and students, most of whom
declined to go on the record about the atmosphere of the law school and the allegations
against Mutua.
However, The Spectrum has pieced together a paper trail that indicates discontent,
which includes the October 2010 attempt by three tenured faculty members to hold a
meeting to request a vote of no confidence in Mutua.
Former President John B. Simpson and then Provost Satish Tripathi asked the faculty to
attend the meeting that would be held on Oct. 22, according to emails obtained by The
Spectrum in 2013. Mutua declined the meeting despite receiving a request signed by
three members of the faculty in accordance with faculty bylaws.
On Oct. 25, following a faculty meeting on Oct. 22, Simpson and Tripathi sent an email
to the faculty addressing the meeting regarding Mutua.
Law faculty said they never took a no confidence vote in Mutua, but voted to put the
matter on the agenda again. It triggered a meeting with Tripathi and Simpson, who told
the faculty the administration was not interested in their concerns about the law school
leadership, according to professors in the law school.
UB policy states that deans should be reviewed every five years. Mutua was dean for
six and a half years before a review was initiated, according to emails obtained by The
Spectrum.
In February 2014, UB and SUNY Distinguished Professor of Chemistry Frank Bright,
who headed Mutuas review committee, sent an email to the law school faculty saying a
five year review of Mutua was beginning.
Mutua began as interim dean in late 2007 after Nils Olsen stepped down. A press
release announced his appointment as dean in May 2008. Some law school professors
question the process that led to Mutuas appointment because he didnt go through a
full and regular search process, according to law school faculty. Tripathi appointed him
after a failed national search. But UB Spokesman John Della Contrada said, there was
nothing out of the ordinary about the search.
The results of Mutuas decanal review, which was completed around May 2014, are
confidential, according to Bright.
However, Provost Zukoski sent out an email to those who participated in Mutuas review
on July 1. The letter outlines the law schools accomplishments under Mutua, including
improving the number of law graduates who pass the bar, improving infrastructure and
increasing fundraising efforts.
The letter states that Zukoski discussed the review results with Mutua and alludes to
concerns of faculty members.
Through the decanal review process, Law School faculty and staff have raised issues
of concern to me as provost, Zukoski wrote. These issues have strained relationships
within the school and created tension around leadership and unit cohesion.
The letter does not indicate if the decanal review process had an effect on Mutuas
position as dean. Della Contrada said input by faculty, staff, students and members of
the community is a vital part of the decanal review process.
Malkan is suing for $1.3 million in damages and said he has essentially been blacklisted
in his profession because Mutua not only fired him, but also would not write him a letter
of recommendation.
The university always settles these cases and no one could understand why after the
first six months, Why couldnt they just let you go? Malkan said. I would have just left.
Just give me one semester salary like some little severance pay and a letter of
recommendation, like a letter of good standing, and I could have found another job and I
would have been out of here.
Malkan said he views Mutuas resignation as a relief, and said he was surprised Mutua
was allowed to remain dean with lying under oath allegations lingering.
In a university release, Zukoski praised Mutua for what he has accomplished in his time
as dean.
He has led the school through a nationally challenging time for legal education, while
strengthening the schools programs and faculty and advancing UBs teaching, research
and engagement missions, Zukoski said.
Tripathi expressed his thanks to Mutua, who has been in the law school since 1996, and
appreciation for his service to the university in the same release, stating the law school
is well positioned to achieve even greater prominence in legal education and
scholarship.
James Milles, a law professor who teaches legal ethics at UB, said those
accomplishments Zukoski pointed out in the letter to faculty would not have happened
without the hard work of the entire faculty.
Weve got a solid and dedicated group of faculty and staff without whom all those
accomplishments would not have been done and they will continue to do great things in
the future, he said.
Mutua, a native of Kenya, is active in Kenyan politics and writes political columns for
Kenyan news sites. He received a doctor of juridical science degree in 1987 from
Harvard Law School, he served on the Iran tribunal hearing in 2012 and was elected
vice president of the American Society of International Law in 2011.
Mutuas position as dean and the inherent credibility that comes with it has allowed him
to serve on the Erie Canal Harbor Development Corporation and Gov. Andrew Cuomos
Moreland Commission, which was supposed to root out political corruption, but was
shut down early.
Sam Benatovich, a second-year law student who has never met the dean in person,
said the allegations Mutua is facing are troubling. He said the law schools program
focuses on integrity and students have to take a class on ethics in the legal profession.
If the allegations prove to be true, Benatovich said, the dean of a law school cant
flagrantly disregard the foundation of our legal system. It sends mixed messages as an
educator. Its not just wrong, but downright repugnant to create the next generation of
lawyers while flaunting your lack of respect for the legal standards.
email: news@ubspectrum.com
This article has updated to clarify the difference between allegations and charges.












http://www.buffalonews.com/city-region/university-at-buffalo/deep-rift-exposed-as-ub-laws-dean-
resigns-20140927
Deep rift exposed as UB Laws dean
resigns
Faculty foes allege perjury, mismanagement of school
Makau Mutua. Photo by Derek Gee/Buffalo News
By Phil Fairbanks | News Staff Reporter | @PhilFairbanksBN | Google+
on September 27, 2014 - 6:20 PM

Behind the scenes at one of Buffalos oldest and most important legal institutions, there
is a growing rift, an internal family feud fueled by allegations of perjury against its
leader, a near vote of no confidence and an internal review that paints a portrait of a
deeply divided institution.
At the center of the storm is Makau W. Mutua, a Harvard Law graduate, an
internationally known human rights activist, and the dean of the University at Buffalo
Law School. Mutua suddenly gave up that position Monday in the wake of criticism over
his leadership, and he will step down in December to return as a faculty member.
Mutuas seven years as dean appear to have divided the law school, pitting a man
known across the world for human rights activism against many of the schools most
distinguished faculty members.
Its very toxic. Its very sad, one faculty member said of the environment at the law
school. We have a community that feels alienated by the administration and distanced
from the school.
The deans critics, and they are numerous, include some of the schools most highly
regarded faculty members.
They claim Mutuas management style divided the school at a time of great economic
turmoil. Applications and enrollment at UB Law, like at most law schools across the
country, are down dramatically, and the school is going through a downsizing of both
faculty and students.
Critics say Mutua, who came from within the ranks of the faculty, arrived in the deans
office with a divide and rule philosophy that placed a priority on loyalty and penalized
critics while rewarding allies.
But many alumni and donors view his stewardship as a much-needed step forward.
In their eyes, Mutua shook up a moribund faculty, reached out to alums who felt
alienated from the school and succeeded in raising $23 million in private donations.
They say the law schools endowment has nearly doubled since he became dean.
I found it absolutely refreshing, said Daniel C. Oliverio, a well-known Buffalo lawyer,
alumnus and donor, of the deans efforts to reconnect with alumni. I found his outreach
and responsiveness to be extraordinary.
Mutua would not be interviewed for this story. But in a prepared statement, he said the
allegations of perjury and his disagreements with faculty had nothing to do with his
decision to step down.
I decided to leave because it was the right time, he said. A seven-year tenure is twice
as long as the typical tenure for a law dean, and Ive accomplished what I set out to do.
And in a statement announcing Mutuas resignation, UB President Satish K. Tripathi
said the dean left the law school well positioned to achieve even greater prominence in
legal education and scholarship.
Within a university environment, it is expected that faculty, staff and administrators will
have strong and sometimes differing opinions about academic issues, UB said in a
separate statement to The News. Discussion, debate and collaboration are encouraged
at a university and are an important part of academic life.
A lack of confidence
In the halls of the law school, there is a far different view of the man many believe
aspires to high political office in his native Kenya.
Several faculty members spoke to The Buffalo News on the condition they not be
identified, but others, including six of the schools most highly regarded faculty
members, talked openly about their lack of confidence in Mutua. Some are retiring next
year.
Simmering beneath the surface for years, their dissatisfaction became public when eight
filed signed statements in support of a law professor who was fired by Mutua six years
ago and subsequently sued the dean in Buffalo federal court.
The suit by Jeffrey Malkan accuses Mutua of lying under oath, not once but twice, about
the firing. The faculty members statements support Malkans account of what happened
and contradict Mutuas side of the story.
If theres one thing we should be teaching our students, its that sense of honesty, trust
and professionalism, said law professor Martha T. McCluskey.
Mutua has denied in court papers the allegations of perjury, but both he and the
university declined to comment on the suit while its pending before U.S. District Judge
Richard J. Arcara and U.S. Magistrate Judge H. Kenneth Schroeder.
In the eyes of some faculty members, Malkans suit is a symptom of a larger problem
the deans mismanagement of the school. They claim Mutua lacks an educational vision
and is more concerned with power and control than with the schools future.
They also claim the dean singled them out because of their perceived disloyalty and
that his actions led to a near vote of no confidence four years ago. The effort was
quashed by then-President John B. Simpson.
Things were already brewing, said Alfred S. Konefsky, a University at Buffalo
Distinguished Professor, of the growing dissent at the school. The senior faculty felt it
was important to go on the record.
The vote never happened. But, a few years later, Mutua again found himself the target
of a scathing critique, this one an internal evaluation done by a group of faculty
members led by chemistry professor Frank V. Bright.
Bright said he could not comment on the review, but Provost Charles F. Zukoski, in a
letter to law school faculty at the time, acknowledged the facultys dissatisfaction with
the dean.
These issues have strained relationships within the school and created tension around
leadership and unit cohesion, Zukoski said.
By some accounts, the tension escalated and, in recent months, led to a private
meeting between Zukoski and six female faculty members concerned about Mutuas
treatment of them.
He has a very authoritative style that is arbitrary and capricious, and usually works to
his benefit, said law professor Rebecca R. French.
French would not comment on the meeting, but others confirmed it centered on Mutuas
relationship with female faculty members and, more specifically, a series of actions he
took against them.
More often than not, the actions they point to involve Isabel Marcus and Lynn Mather,
two other law professors. They say Mutua removed Marcus as head of the schools
international programs while she was undergoing chemotherapy treatment for breast
cancer.
He tried to force me to resign, said Marcus, who remains on the faculty. I refused and
he fired me.
Faculty members say Mather, former head of the schools highly regarded Baldy Center
for Law & Social Policy, also was targeted by the dean. Colleagues say Mather, who
has since been named a SUNY Distinguished Service Professor, was recruited from
Dartmouth College to head the Baldy Center.
I was totally shocked, Mather said. I was deeply invested in the center and had a lot
of programs planned for the next year.
A red flag
To hear faculty members talk, the growing unhappiness with Mutua is rooted, in part, in
his decision to fire Malkan in 2008.
It was a sign of things to come, they say, and a red flag to anyone, but especially to
untenured faculty members, who might think twice about their allegiance to the dean.
Even more important, perhaps, was what followed, namely Malkans wrongful-
termination suit, accusing Mutua of lying under oath about a faculty vote to promote
him.
Theres not the slightest bit of evidence that Mutua did not commit perjury, Malkan told
The News. Hes actually succeeded in carrying out a miscarriage of justice.
At the heart of the suit is a 2006 meeting at which faculty members took up the question
of Malkans promotion from associate clinical professor to full clinical professor. He also
was director of the schools Legal Research and Writing Program.
Faculty members who were there say the vote was close, but Malkans promotion was
approved. They say Simpson, who was then president, confirmed it in a letter to
Malkan.
Mutua, who was named interim dean a year later, removed Malkan from his research
and writing post in 2008 and, a few months later, fired him from his clinical professors
post as well.
Malkan responded by filing a complaint with the Public Employee Relations Board
PERB ruled against him and later a civil lawsuit demanding $1.3 million in damages.
Supporters say Malkan has been unable to find work since his firing.
Mutua denies the allegations of perjury and, in court papers, claims there never was a
vote to promote Malkan.
There was only one vote, which was to extend him for another year as director of the
program, Mutua said during a deposition last year.
And you remember this clearly? he was asked.
I remember this very clearly, Mutua answered.
Privately, faculty members say his recollections of the vote are, at best, off base and, at
worst, dishonest.
Charles P. Ewing, former vice dean of the law school and a co-defendant in the suit,
would not comment on the perjury allegations but, as part of the court case, filed a
motion to remove himself from the suit.
In his motion, Ewing says he was often openly and strongly critical of Mutua and his
management of the law school. He also claims he asked Mutua to resign in order to
avoid the vote of no confidence four years ago.
Mutuas credibility is certain to be attacked at trial, and that attack will be built on the
credible testimony and notes of many distinguished law professors, Ewing said in a
signed statement to the court.
Ewing went on to say that the perjury allegations have tainted him, as well, and that
fairness requires he be removed from the suit. Malkan has since dismissed Ewing from
the suit.
Ewing would not comment on his motion but, in a brief statement to The News, said his
five years as vice dean, working alongside Mutua, proved frustrating.
I did my best to serve as a buffer and mediator between the faculty and the dean, he
said. As troubled as I and most of my colleagues are about some of the things that
have happened at the law school in recent years, theres not a single one of us who isnt
fully committed to our students and to retaining our well-deserved reputation among
lawyers, judges and legal scholars.
As part of his motion, Ewing included the declarations of eight other professors, most of
whom were at the 2006 meeting. Each of them supports Malkans and Ewings account
of what happened.
Seen as a savior
There was a time when Makau Mutua was viewed as a savior of sorts.
It was 2007, and Law School Dean R. Nils Olson had announced he was stepping
down. When a national search for a new dean failed, the university looked inside and
found Mutua, a respected faculty member and internationally known human rights
scholar.
He became dean in early 2008 after a brief stint as interim dean and, by all accounts,
quickly made his mark on the law school.
Makau has re-energized that faculty, said Thomas E. Black Jr., a Dallas lawyer,
alumnus and chairman of the Deans Advisory Council. I think hes added a ton of
energy to the school.
To hear Black talk, Mutua shook up a school that had fallen in national law school
rankings, an issue of great concern to alumni.
He credits the dean with bringing in more than 20 new faculty members and overseeing
a difficult but necessary downsizing. The hope is that a smaller law school this years
incoming class of 145 is down from a high of about 250 a few years ago will result in
better students and, therefore, higher rankings.
Change is a difficult thing, especially to tenured faculty who have been there a long
time, Black said.
Among Mutuas supporters, there is a school of thought on why the senior faculty rose
up against him. They view it as a generational conflict, an old guard versus new guard
type of battle.
Every organization has that, said Oliverio, the Buffalo lawyer and UB Law School alum
and donor. Show me an organization, a business, that doesnt have that.
Even critics acknowledge that Mutua is popular among donors. He is often described as
charming and charismatic, and supporters say he is personally responsible for the
success of the law schools $30 million capital campaign.
To date, hes raised $23 million, and Oliverio says his success is rooted in a desire to
reach out to alumni with deep pockets.
He said Mutua is the first UB Law School dean in his memory to come to the offices of
Hodgson Russ, Oliverios law firm, and ask for the firms input on changes at the school.
The firm has since committed $500,000 to the law school.
Mutuas emphasis on fundraising is no accident. With a decline in both enrollment and
state aid, it has become more and more necessary for UB to raise money privately, and
Mutua has done just that.
I think weve been fortunate to have Dean Mutuas leadership and vision, said Francis
M. Letro, a well-known Buffalo lawyer, alumnus and longtime donor.
More than anything else, Letro credits Mutua with preparing the school for the next
generation of lawyers.
The dean has invested in technology as a way to improve the schools long-distance,
global teaching and in the aging and tired physical plant.
I think Mutua saw that coming, Letro said of the decline in law school enrollments. I
also think hes done a lot of good at the law school to position it for the challenges of a
21st-century legal education.
A surprise to some
Mutuas resignation surprised a lot of faculty members. They say Tripathi seemed
insistent on keeping Mutua at the helm and, as recently as last week, expressed
support for him.
But six days before his resignation, Tripathis boss, SUNY Chancellor Nancy L.
Zimpher, received a letter from several female faculty members, detailing their
complaints about Mutua and their effort to seek help from the administration.
The resignation also came two weeks after The News began asking questions about the
rift at the law school.
UBs statement, which was provided to The News before Mutua resigned, also made a
point of noting the enormous pressures on law schools everywhere and suggested
that UB is in a better position than most to address those pressures.
UB officials are quick to cite Mutuas creation of new academic programs supporting the
schools global aspirations, and his work improving real-life learning opportunities at the
law school.
I am most proud of my work with my colleagues and with university leadership to lead
our great law school through its renaissance, Mutua said. In spite of challenges in the
legal profession, the UB Law School is on a path to overcome them and continue on its
present path of academic excellence.
email: pfairbanks@buffnews.com
Jeffrey Malkan 2 days ago
I think I should make two important points. First, the "Dean's Advisory Council," of
which Hodgson Russ's Daniel Oliverio, Esq. is Chair, is not an oversight board of the
Law School by any stretch of the imagination. The law school, essentially, has no
management, either through the process of faculty self-governance, or by guidance
from the Provost's Office.
Second, the mandatory ADR for my federal lawsuit was held under the auspices of
Hodgson Russ on March 1, 2013. The local court rules for the Western District of
New York state that a party can only be excused from mediation if he or she seeks
permission from the judge on fourteen days notice to all parties. On the morning of
the ADR, Dean Mutua simply did not show up. I was there with my counsel (having
traveled 450 miles), Professor Ewing was there with his private counsel. The
Attorney General was there and the UB Employment Counsel was there (both deeply
embarrassed). The story they told was that Dean Mutua had another appointment
that morning and had decided to attend the other appointment in preference to this
one.
Fast forward fourteen months. In a ludicrous Buffalo Law Journal article, dated May
14, 2014, Mr. Oliverio, Managing Partner of Hodgson Russ, related that "The first
time he met Mutua, years ago, he invited the dean to come and speak with Hodgson
associates but wasnt sure it would ever happen. Lo and behold, a week later, he was
on the phone, saying, When? Thats a testament to his leadership, Oliverio said.
[How about simply showing your face to the students at the Law School, Dean
Mutua.] Mutua, likewise, praised Hodgson Russ for the commitment to not only
raise money for UB but to lend a hand to students and faculty, when possible.
"Where there is $500,000, I believe there is another $500,000, he said. We hope
that this dream can become a reality.
Dean Mutua did not show up for a court-ordered mediation, but "lo and hehold"
appeared on the spur of the moment at the very same law office to collect $500,000
from wealthy lawyers, with promises of more dollars to follow.
After much stonewalling and delaying, Dean Mutua finally sat for a deposition held
at the offices of Damon Morey on December 19, 2013. He brazenly told one lie after
another, most of which have now been conclusively documented on personal
knowledge from the most credible of sources -- the senior members of the Law
School faculty.
Who in their right mind would give another dollar to the Law School until there is a
forensic audit of the black hole known as the UB Foundation account? Does anyone
want tocontinue sponsoring Dean Mutua's first class travels to the Netherlands,
Serbia, Senegal, China, Tanzania, Kenya, London, Atlanta, Fort Lauderdale,
Galveston, Rome, etc. (all this year) when the rest of the faculty is back in the
classroom teaching?
In an earlier Buffalo Law Journal article, dated May 18, 2012, the trust between the
Hodgson Russ partner and the Law School Dean was expressed in even more
fulsome terms: "In Mutuas second-floor office at SUNY Buffalo Law School, they
share a smile that belies their respect and admiration for each others work."
I wonder how much respect and admiration Mr. Oliverio would display if one his
partners or associates was caught lying under oath in federal court and destroying
subpoenaed documents. If crimes against the judicial process do not dampen Mr.
Oliverio's enthusiasm for the refreshing wit and wisdom of Dean Makau Mutua, what
professional person would entrust their legal business to Hodgson Russ?
Mr. Oliverio should be shocked about what he has learned -- that a charlatan picked
his pocket -- instead of chalking it off to the inevitable differences of opinion within
an institution when the "old guard" is repressing the "new guard." The relationship
between me and Makau Mutua is not the relationship between colleagues with
different points of view. Colleagues do not win debates with colleagues by calling
them "imposters" or accusing them of being "a danger to others in the building." This
is the relationship between a ruthless, vain, and dishonest man and a tenured clinical
law professor who was doing his best to administer and teach in the first year writing
program while making his contribution to the upper-division intellectual property
program, and doing his part to mentor his less experienced colleagues and advance
the careers of his students. More simply put, it is the relationship between a criminal
and his victim.
Publius 2 days ago
Buffalo alumni must be cut off from access to what's happening in the world of legal
education generally. Mutua's "accomplishments," such as they are, are about average
for deans at American law schools. Until the recession, every dean was a great
fundraiser, for example, and retooling the law school curriculum to make it more
practice oriented has been going on everywhere in legal education since the late
sixties. The ineffectiveness of Mutua's management style, on the other hand, has
been the subject of critical comments on legal blogs for several years. (It also seems
pretty clear, if one reads the documents in the case, that Malkan's claim that Mutua
lied under oath is correct.) President Tripathi's statement that Mutua left the law
school "well positioned to achieve even greater prominence in legal education and
scholarship" is laughable to anyone who knows anything about legal education or
legal scholarship. A dean with any kind of reputation forced out the way Mutua was
already would have a new job in hand, but Mutua has not resigned his position on
the UB faculty, notwithstanding that he now will have to work side by side with
people he knows can't stand him. If he had any stature in legal education he'd be long
gone from UB, but he's toxic and likely to be at the School for as long as it will have
him. I'm happy for the UB law school that this sad episode in its history is over, but
not optimistic that the present university administration will avoid the same mistake
in selecting a new dean. The problems at UB go well beyond the Law School.

http://www.ubspectrum.com/news/view.php/849579/Mutuas-unsettling-tenure-
Mutuas unsettling tenure
Law school deans resignation illuminates need for increased evaluation and
accountability of university leaders
On September 26, 2014
Despite a hasty appointment, dissatisfied faculty and near invisibility on campus, it wasnt until
Makau Mutua faced allegations of lying under oath that his position as dean of UBs law school grew
tenuous.
UB hasnt said, or insinuated, that the law school dean resigned because of the allegations. Mutua
said it was the right time to step down because he accomplished what he set out to as dean. UBs
release lauded the dean as a major fundraiser.
However, The Spectrum finds the timing suspicious. One month after the allegations surfaced in
court case documents, Mutua stepped down.
But Mutuas seven-year tenure calls into question UBs processes of decanal appointment and
reviews at the university.
Mutua became an interim dean in late 2007. Then, after a failed national search, then Provost Satish
Tripathi appointed him dean in May 2008. Law school faculty members questioned the search
process and Mutuas suitability for the position.
Mutuas actions as dean suggest that these faculty members may have been right to critique
Tripathis decision. They also illuminate the problematic lack of evaluation for deans at UB and a
worrisome abundance of oversight surrounding Mutuas tenure.
In October 2010, then President John B. Simpson and Tripathi dismissed the concerns of law school
faculty after they attempted to hold a vote of no confidence in Mutua. According to law school
faculty, Simpson and Tripathi informed them that they were not interested in the facultys concerns
about the dean. Such willful disregard of complaints that at the very least merited investigation is
indicative of an overly lenient attitude surrounding the leadership of UBs academic departments.
Now, almost four years later four years of faculty malcontent and complaints from students that
theyve never even seen Mutua UBs law school, which is already planning to downsize, faces the
unpleasant prospect of a dean facing allegations of lying in federal court.
The allegations stem from a 2011 lawsuit filed by former clinical professor Jeffrey Malkan, who
claimed that Mutua fired him unfairly. Malkan is suing for $1.3 million in damages and insists his
unlawful firing and Mutuas refusal to write him a letter of recommendation left him blacklisted and
unable to find work.
Mutua is alleged to have lied while under oath, after his statements contradicted testimony from
seven other UB law professors. He has also claimed to have lost materials he was required to
submit to the court, in a move that Malkan says is obstruction of evidence.
And yet, after all this after a shaky appointment, long absences from campus, discontent from
professors and legal turmoil six and a half years went by before even the possibility of
accountability arose.
Mutuas five-year review wasnt initiated until February 2014, six and a half years after his
appointment. Mutuas review clearly wasnt a priority to the administration, despite the multitudes of
complaints generated by his questionable behavior. This suggests a serious lack of commitment to
the development and maintenance of quality leadership at the law school.
Even when carried out in a timely manner, five-year decanal reviews are insufficient. Half a decade
passes before deans successes and failures are evaluated and discussed, before problems are
addressed and practices improved.
This should not be standard practice.
A lot can happen in five years students arrive as freshmen and depart as graduates within that
timespan.
This is especially problematic for recently appointed deans, such as Mutua, who could certainly
benefit from more immediate feedback. UBs outlined procedure for review of academic deans
recommends that a preliminary review of new deans after three years, noting a new dean can
benefit markedly from a review during the initial years of his or her appointment.
Somehow, Mutua flew under the radar for more than double that time. In the years that Mutua
worked for the law school without undergoing review, professors were evaluated at least six times.
UB requires that department chairs review with faculty members at least once a year, discussing
student feedback and assessing professors teaching. This procedure is sensible and beneficial to
instructors and students alike. Deans should face a similarly rigorous review process.
Its promising that the Faculty Senate is aware of this issue, and has begun to review its policy.
Deans, like professors, deserve the opportunity to perform their job to the best of their ability, and
feedback is a critical tool. Students and faculty should be able to feel confident that those in the
upmost echelons of their school have all the resources they need and that their dean is the best
person available to be placed in such an esteemed and important position.
When faculty and students complain and it becomes increasingly clear that a dean is not serving UB
sufficiently, its deplorable for administrators to look the other way.

email: editorial@ubspectrum.com
http://blogs.artvoice.com/avdaily/2014/09/22/ub-law-school-dean-to-step-down-amid-charges-of-
perjury/
UB Law School Dean to Step Down Amid Charges of Perjury
by Buck Quigley - posted 6:31 pm, September 22, 2014
Filed under: Education, Local Interest, State Politics
Tags: Andrew Cuomo, Makau Mutua, Satish Tripathi, SUNY at Buffalo, UB Law School

Makau Mutua
The UB News Center reports today that Makau Mutua will be stepping down as Dean of UBs Law
School effective December 19. Hell then return to the law school faculty as SUNY Distinguished
Professor and Floyd H. and Hilda L. Hurst Faculty Scholar.
From the press release:
UB President Satish K. Tripathi said that through Mutuas leadership the UB Law School is well
positioned to achieve even greater prominence in legal education and scholarship.
I want to express my heartfelt thanks and deepest appreciation to Makau for his leadership and
service to our university during his tenure as dean, Tripathi said.
Mutua was educated at the University of Nairobi, the University of Dar-es-Salaam and Harvard Law
School. But the statement from UB doesnt mention anything that was reported last month in The
Star newspaper based in Nairobi, Kenya.

From The Star:

A Kenyan law professor based in US has been accused of committing perjury in an American court,
his co-accused now wants the cases separated.
Makau Mutua, a human and civil rights activist, has been accused of lying in court.
He is sued for allegedly irregularly laying off Jeffrey Malkan, a lecturer at Buffalo Law School
where Mutua is a Dean.
Evidence against Mutua is said to include sworn deposition testimony and sworn affidavits from
seven tenured faculty members.
How embarrassing to all us local media outlets that this hometown story was broken over a month
ago by a paper in Nairobi.
Among the legal documents connected to the case is the December 5, 2013 Declaration of President
Satish K. Tripathi, submitted to the court in exchange for the Plaintiffs withdrawal of a subpoena
wherein we learn that the former computer scientist and current SUNY at Buffalo president relies on
staff to read his email(EDIT: mail) for him. At the time relevant to the complaint, Tripathi was
serving as UB Provost.

From Tripathis declaration to the court:

Document 2 is a series of emails between various individuals on six pages. I am not sure whether or
which emails were separately strung together or constitute a continuous email chain. I do not
recall previously reviewing any of these emails. I note that one email was addressed to me and that
there is a reply from me. I do not recall having any conversations with Mr. Mutua or anyone else
concerning the matters discussed in these emails. I do recall generally the fact that there was a
hearing involving the Public Employment Relations Board (PERB) and that Mr. Mutua conveyed
by email that the University won the hearing. I do not recall having any conversations with Mr.
Mutua or anyone else concerning the PERB hearing. I also note that there is an email from Mr.
Mutua to James (Jim) Newton stating that I showed Mr. Mutua a letterpresumably the letter
referenced at the bottom of page one which Mr. Mutua refers to as a letter to me from the union in
which the union asks me to fire Mr. Mutua. I do not recall showing Mr. Mutua this letter. I also do
not recall having any conversations with Mr. Mutua or anyone else about the referenced letter.

Document 3 is an undated letter from Mr. Malkan to Council Members with attachment. I do not
recall seeing this letter or the attachment prior to this review. I also do not recall having any
conversations with anyone about this letter or its contents. Based on the dates set forth in the
letter, I assume that this letter was sent after litigation was commenced and
therefore the letter would have been routed to SUNY Counsel by my staff who reads
my mail, but I am unaware of any facts in this regard.
(Emphasis added)

Five of Tripathis twenty responses conclude with the same highlighted language.

Click here to read Tripathis declaration.

Evidently, this perjury stuff is pretty serious business within the legal profession.

A source tells us that the federal case is a Section 1983 action for violation of the Fourteenth
Amendment (right to due process) by a state official acting under color of state lawand the
damages to which Malkan is entitled are punitive damages, emotional distress damages, and civil
rights attorney fees, running potentially into the multi-million dollar range.

Previously, Mutua had been named by Governor Andrew Cuomo to sit on the ill-fated Moreland
Commission to Investigate Public Corruption.

Bill Altreuter jamesholstun 7 days ago
I may have been parsing the word with too fine an edge. It is one thing for a party to
litigation to say that someone has lied under oath, but an accusation of perjury, a very
specific criminal charge, is another thing all together. Mr. Malkan has lost at PERB, and
has commenced a 1983 action in the Western District of New York in which he alleges,
inter alia, that Mr. Matua has lied. Mr. Ewing, a codefendant in the federal court action,
has moved to have the claim against him severed. I haven't seen the Ewing Declaration,
but as a purely tactical matter that isn't all that unusual. I would hesitate to read too
much into a procedural move like that.
As for the Kenyan press, it is worth keeping in mind that Kenya has a long record of
human rights abuses, and a press which is not wholly independent from governmental
regulation. A grain of salt is called for whenever you read about litigation of any sort and
from any source.
Jeffrey Malkan Bill Altreuter 4 days ago
I think have to field this comment. It's true that I lost at PERB. The reason I lost
at PERB is that Dean Mutua lied under oath and leveraged the credibility of his
office into a miscarriage of justice. First he lied that he did not know about the
UUP's involvement in my dispute with Dean Mutua over the LRW program. (The
dispute was simply his refusal to meet with me and discuss his public criticisms
of me, which turned out to be simply bullying and grandstanding.) Former VP for
HR Scott Nostaja, who was mysteriously removed by President Tripathi within
his first month in office, could have answered the question of what Dean Mutua
knew and when he knew it, but Mr. Nostaja failed to show up at the hearing and
SUNY declined the ALJ's offer to schedule an additional day to bring him in.
Then Dean Mutua -- in the big lie -- claimed that he was justified in firing me
because the P&T Committee had never voted on a recommendation regarding my
promotion. (Hence Nils Olsen was the culprit for acting "ultra vires." ) So Dean
Mutua's success at PERB makes his crime even worse.
Your point about the nature of perjury in civil litiagtion is well taken. The plaintiff
is an interested party so such allegations are inherently dubious. That is why it
has taken four years for this crime to come to light. Now that a tenured faculty
member reported the crime, backed up by seven other tenured faculty members,
it is a credible allegation.
Perjury from a lawyer or a state official is a crime against the judicial process.
This was a profound betrayal of the public trust and it was calculated and
premeditated by the Dean of the Law School to harm a fellow attorney and a
faculty colleague.
It has been covered up with more perjury by President Tripathi. On Dec. 5, 2013,
he signed a sworn declaration in federal court claiming that he knew nothing
about my allegations, despite eight letters or e-mails I sent to his office and two
full-length articles in the UB Spectrum accusing his top administrators of serious
wrongdoing. What does his staff do with this kind of information? Ten months
later... no action taken yet to investigate the evidence. Makau Mutua will still
occupy the Dean's Office for another ten weeks, after receiving fulsome praise
from the servile Provost Zukoski. Not very credible.
In addition Dean Mutua said that my personnel records could not be produced
because they had "vanished into thin air." He again blamed Nils Olsen for
vandalizing the Dean's Office personnel files to cover up his underhanded
attempts to subvert the faculty by promoting "imposters" like me. I assume some
of you know Nils Olsen. I don't think he needs any character references.
The criminal aspect of this case was preceded by breach of contract, violation of
faculty due process procedures, the worst possible defamation against me
(claiming that I was a "danger to other people in the building" and had
threatened the LRW instructors with "physical violence"), and lying to the ABA
Section on Legal Education in its April 2009 sabbatical re-accreditation about the
Law School's compliance with the standards that protect academic freedom and
faculty self-governance. These lies, now documented as lies, endanger the Law
School's continued accreditation and ability to certify graduates for the bar exam.
In addition, we mustn't overlook the questions raised by the University Faculty
Senate about the management of the UB Foundation account, which now will
certainly be forensically audited. Finally, there's the question of why law school
tuition has doubled since 2009 and how the students have benefited from this
expense. The law school's facilities and curriculum look much the same to me as
they did in 2009, except the institution is burrowing deeper into the basement of
O'Brian Hall every year.
So this isn't about my personal employment problem. It is about the ability of
125-year old Buffalo Law School to continue under the stewardship of SUNY
Buffalo University. The Law School is obviously lacking a Board of Trustees to
whom the Dean is accountable, and the faculty has obviously been demoralized
and bullied to the point where eight senior professors accepted buy-outs rather
than continue to serve in a hopelessly corrupt environment.
I don't think I'm the only person who thinks that SUNY Law School should be a
self-governing professional institution located near the new federal courthouse
and an integral part of the legal community. The last thing the Law School
needed was a self-styled free-lance diplomat roaming the world and meddling in
the politics of foreign countries. That would be senseless even if Makau Mutua
was an honest man.
What happens to me, Makau Mutua, and Satish Tripathi is of profound interest
to us, personally, but not necessarily to the community at large. The bigger
question is how the legal profession is going to respond to a law school that has
drifted so far off track that it is unable maintain compliance with even the most
basic standards of ethics, legality, and common decency


From: jeffrey.malkan@outlook.com




To: Law School Faculty
Subject: Makau Mutua in Copenhagen
Date: Mon, 29 Sep 2014 13:50:31 -0400
Prof Makau Mutua @makaumutua 2h
Makau Mutua at this moment is in Copenhagen at the Law School's
expense, while all of you are in your Buffalo offices and classrooms,
and dealing with the damage and dishonor he has caused. He was in
Europe yesterday in a luxury hotel while your reputations were being
tarnished on the front page of the Buffalo News. Is he a contrite man or
even a sane man? Has he asked any of you to forgive him for leading
the Law School down this path?
My Keynote Address: Is the Age of Human Rights Over?
University of Copenhagen and Danish Institute for Human
Rights. pic.twitter.com/gcoDMalsZ7




Prof Makau Mutua @makaumutua Sep 30
At Royal Library human rights exhibition in Copenhagen.



Prof Makau Mutua @makaumutua Sep 30
University of Copenhagen



September 22, 2014
Makau Mutua Stepping Down As SUNY Buffalo Law Dean
Dean Makau Mutua, who has led Buffalo Law for seven years, will
be stepping down from the deanship this December. Dean Mutua made some size
adjustments in the law school and has also had controversy in his time. (In fact,
the litigation with Jeffrey Malkan continues. A filing here, submitted by the dean's
co-defendant in the Malkan litigation, is pretty interesting in its own right.)
http://www.thefacultylounge.org/

e-mail to SUNY Buffalo law faculty October 6,2014
"we'd all assumed this case had been settled years ago."

From: jeffrey.malkan@outlook.com
To:
Subject: "we'd all assumed this case had been settled years ago."
Date: Mon, 6 Oct 2014 13:10:31 -0400

Colleagues,

In the first Spectrum article, in April 2012, one of our colleagues was quoted as saying that
"we'd all assumed this case had been settled years ago." No, it wasn't. That absence of news
was simply me playing by the rules, while Dean Mutua was cheating.

At that point, almost a year had gone by since I'd notified President Tripathi about the crime
committed by Dean Mutua. He refused to investigate or even acknowledge my allegations and
evidence of perjury. Two years later he submitted a sworn declaration to the federal district
court claiming that his staff had intercepted his mail and he still didn't know anything about my
case.

That these absurd lies come so easily to the President of the University explains why a criminal
still holds the rank of SUNY Distinguished Professor and why the University still has nothing but
fatuous praise for him. My fears about Dean Mutua's perjured testimony were well-grounded
because a miscarriage of justice is exactly what he accomplished.

In the meantime, the slanders that Makau Mutua and Jim Gardner have been circulating about
me for so long seem to have become indelible stains on my reputation, which makes it all too
easy for anyone who disagrees with me to call me a bully or an abusive male.

Jim Gardner

"Several of the instructors have come to me and expressed fear of physical violence."

"Jeff appears to have become mentally unbalanced."

Makau Mutua

"Jeff started shouting in a committee meeting, trembling with rage, waving his arms and
shaking his finger, saying 'you don't know who you're messing with' and 'you're not going to get
away with this.' Even though I'm not a shrinking violet, I felt that I was about to be attacked. It
was an extraordinary moment in the history of the law school."

"Jim Gardner and I concluded that Jeff may be a danger to some of us in the building."

"I believed that Jeff was on the verge of 'going postal' and still believe that he will 'go postal.'"

"Please don't forward any more of Jeff's e-mails. It would be a waste of my time and there is no
point in me reading the screeds of a madman."

I have not been offered any settlement that would allow me to resume my career.

In spring 2009, the Dean at Charlotte Law School, after a full on-campus interview, did not
permit the faculty to vote on my candidacy after he made a call to the Dean's Office in Buffalo.

In fall 2009, at the AALS Recruitment Conference, the Dean at Mercer Law School (which has
the #1 ranked LRW program in U.S. News) knew I was telling the truth because he had a
conversation about my situation with Dianne Avery, but he still had to nip my candidacy in the
bud because no employer can hire someone who has been accused of violent behavior in his
previous job. Those were both tenured professorships.

It is also difficult, if not impossible, to be hired for any kind of work when you are suing your
former employer.

Finally, after my unexplained dismissal, it was impossible for me to account for the gap in my
employment. In August 2009, Johanna Oreskovic spitefully took it upon herself to contact the
legal writing organizations, ALWD and LWI, to make sure that my affiliation with SUNY Buffalo
was removed from their rosters. My case was pending in PERB for a hearing on September 16
that could have resulted in my retroactive reinstatement. Chuck Ewing certainly would not
have thought of doing what Johanna did.

I didn't realize the law school was also marking all my professional mail "Return to Sender,
Address Unknown" until I was informed by a professor at Cornell that an acknowledgment
letter for my job application had bounced back to him. So in my job search I could not gloss
over the fact that I had left my 405(c)-protected position of full Clinical Professor at SUNY
Buffalo headed for nowhere.

To this very day, all of my possessions, including my clothes, furniture, books, etc. are sitting in
a storage locker on Millersport Highway because there is nowhere for me to take them. I've
lost my vocation, reputation, and livelihood, and I'm hundreds of thousands of dollars in debt,
which includes money borrowed to finance my litigation.

I've been the victim of a state-sponsored crime that is unbelievably hateful and malicious, and
the criminals, Makau Mutua and Satish Tripathi, are still unrepentant and defiant.

They have been terrorizing me for six years and their sole purpose has been to prevent me from
recovering. There was a mandatory mediation (called a pre-hearing conference) at PERB in
February 2009, but SUNY refused to make an offer. There was another mandatory mediation
on March 1, 2013 in the offices of Hodgson Russ, but Dean Mutua did not even show up
(unexcused absence). Last month, Judge Arcara ordered the parties to confer yet again about
restarting mediation, which led to last Monday's tentative "settlement offer" of one-year's
severance pay.

When in fall 2012 I tried to shed some light on Makau Mutua's malicious misconduct through
the legal writing listserv, Patrick Long circulated an internal e-mail, saying that "Jeff Malkan is
spewing venom all over us." Johanna Oreskovic wrote that "there's nothing like a strong cup of
coffee and one of Jeff Malkan's rants to start your day." Laura Reilly wrote, "Jeff makes me
want to throw up."

The instructors had reported to Dean Mutua in "performance reviews," dated February 29,
2008, that the program, under my supervision, was terrible, but that they were all wonderful.
Bernadette [Clor] Gargano took the initiative to write fifteen single-spaced pages of trivial
gripes, gossip, and lies. No one in my life has ever before or since written fifteen pages about
me.

The LRW instructors have never disavowed the slanders that have been attributed to them.

After the first Spectrum story broke, the so-called "Vice-Dean for Legal Skills" (a phony Makau
Mutua job title), Kim Diana Connolly, told the LRW instructors in an e-mail that my litigation
against Dean Mutua was a PR disaster, "the elephant in the room," but her "marching orders
from the third floor" were to distract the media by "touting the program" and "bragging about
how wonderful all of you are."

The way the legal writing program is presently staffed -- with decanal appointees -- is a toxic
situation and shouldn't continue. Everyone on the faculty should come in through the faculty
appointments process, and be treated with equal respect for their contributions. Even though
every job in the law school is different in some ways, there are more similarities than
differences. Every professor should be willing to accept a small section of first-year legal
writing as part of their regular rotation. Anyone who can teach a seminar can teach this course.

In 2007, Rebecca French had the idea that Law School tuition should be reduced to zero. That
was truly inspired and worth striving for. At the very least, tuition should be rolled back to
2009 levels and lower, if possible. The students should be consulted on how the budget is
allocated and what services and administrative functions they are willing to forgo.

The stewardship of SUNY Buffalo has failed and the Law School should become an independent
downtown SUNY College of Law with its own Board of Trustees that truly exercises oversight
over the dean. The Law School has an opportunity to remake itself into a model of professional
training as well as academic excellence.

I think those on the faculty who have committed serious ethical and legal violations should
receive due process.

I think the Law School has to apologize to the donors whose trust has been abused and prove to
them that all of their money in the future will be going directly to the students with not a cent
to finance the Dean's lifestyle and journeys around the world.

The faculty cannot by itself repair the damage done by President Tripathi and Dean Mutua. It
needs to commission an impartial inquiry at the University's expense into how and why this
happened so that it cannot happen again. Then move forward.

Sincerely,



Jeffrey