---------- Forwarded message ---------From: Jeffrey Malkan <jeffrey.malkan@outlook.

com>
Date: Thursday, April 9, 2015
Subject: Jim Gardner's Feb. 25, 2008 memorandum
To: Dear Colleagues,
This "memorandum" was written by then-Vice Dean James A. Gardner on February 25, 2008. I have
several points about it that I want the faculty to know.
https://www.scribd.com/doc/261375283/Jim-Gardner-s-evaluation-re-Jeff-Malkan-2-25-08
My first point is that I had already been reviewed by the P&T Committee in April of 2006. Jim Gardner's
memorandum represents a secret "investigation," with secret allegations, under the auspices of the
Kafkaesque administration of Makau W. Mutua. Former-Dean Mutua relied upon it as justification for
my removal as director of the LRW program and dismissal from the faculty.
My second point is that this memorandum was written by an administrator in the Dean's Office who was
going to present his allegations against me, unchallenged, to the Dean with a recommendation to take
action on them. He was repeating second and third-hand gossip from the LRW instructors, but instead
of verifying their gossip, he decided that I was not even going to be allowed to see what he wrote.
My third point is that I did not waive my right to see what he wrote, as I would have had to do if it was
part of a tenure-review process. In fact, I did not even know about this memorandum until it was
disclosed in federal court as a subpoenaed document.
My fourth point is that the University has a Faculty Code of Conduct that establishes norms of decency
and civility. This memo proves how faculty members who di srespect these norms disrupt the collegiality
and coherence of the faculty. The consequences of Jim Gardner's malicious misconduct in my case have
been devastating for the Law School.
My fifth point is that Jim Gardner's statement was defamatory under any legal standard and was
intended to destroy my reputation and ability to earn a livelihood, here or anywhere else.
My sixth point is that Jim Gardner's choice of words to describe his allegations was inexplicably evasive
to the degree that any lawyer can tell that his statement was substantially false and improperly
motivated.
"[E]vidence has recently come to light of unbalanced and possibly abusive behavior by Jeff toward at
least one of the instructors he supervises. I was told by one of the instructors that, upon learning that his
performance as director would be reviewed, he verbally dressed down one of the instructors, claiming to
have been betrayed by them, and said things that could be construed as indicating an intent to seek
some kind of retribution by micromanaging them in a vindictive fashion."

(a) What did he mean by "at least one" of the instructors? Did he have "evidence" from more than one?
How did this evidence "come to light"? Was it solicited by the Dean's Office and were the instruct ors
subject to any coercion at the time?
(b) What did he mean by "possibly abusive" behavior?
(c) Who said what about whom? I read Jim Gardner's memo to say that one of the instructors told
another of the instructors, that the second instructor told hi m, and that he is now telling the Dean.
(d) Jim wrote that I "verbally dressed down" one person, and that what I said "could be construed as
indicating an intent to seek some kind of retribution."
* could be construed
* as indicating an intent
* to seek some kind of retribution
Was Jim implying that I raised my voice, uttered profanity, touched or threatened to touch someone
physically? Where did this encounter take place? Did the "person" (whoever it was) say she felt
intimidated or constrained in any manner? Was she free to respond or leave? Was anyone else
present?
(e) What are the implications of an administrator calling a faculty member "unbalanced"? Is that a
psychological assessment or simply a layperson's pejorative term?
Despite all the damage that has been done to this institution by former-Dean Makau W. Mutua and
Interim Dean James A. Gardner, this is still a law school. The public trust in the legal system requires
that the standards and practices of the legal profession be applied here, and I believe that they will be.
Sincerely,

Jeffrey