Malkan V Mutua Appendix Vol 2 (2-17-2017)

Case 17-38, Document 31, 02/17/2017, 1975451, Page1 of 162
17-38-cv
mlniteb ~tates ~ourt of ~ppeals
jfor tbe
~econb Qttrcuit
Jeffrey Malkan,
Plaintiff-Appellant
v.
Makau W. Mutua,
Defendant-Appellee
Charles P. Ewing
Defendant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK
APPENDIX FOR PLAINTIFF-APPELLANT - VOLUME II
Jeffrey Malkan
Plaintiff-Appellant, pro se
12 Valleywood Ct. W,
St. James, N.Y. 11780
(631) 862-6668
INDEX TO APPENDIX
Special Appendix
Sheet and Judgment ................................................................................. 2
Notices of Appeal, January 3, 2017, January 13, 2017 ................................................. 15

Complaint, March 23, 2012 ................................................................................ 20
Answer, August 3, 2014 ..................................................................................... .31

Decisions Below in Malkan v. Mutua ........................................................................................... .35
l. Decision of Hon. Michael A. Telesca, filed 12/18/2016 ...................... "'" ................... 36
2. Report and Recommendation of Hon. H. Kenneth Schroeder on summary judgment motion,

filed 12/1/2015................... .......................................... ............... . ........... 42
3. Report and Recommendation of Hon. H. Kenneth Schroeder on Rule l l motion, filed

12/1/2015 ...................................................................................................... 54
4. Decision and Order of Hon. Richard A. Arcara on motion to dismiss and motion for stay, filed
l('/3/2012 ...................................................................................................... 94
Decisions in Related State Court Litigation .............................................................. 1 I 8
l. Memorandum Decision of Appellate Division, Fourth Department, in Malkan v. State of New

York (SUNY Buffalo), filed 12/23/2016 ................................................................. J 19
2. Decision of Court of Claims, Hon. Michael E. Hudson, in Malkan v. State of New York
(SUNY Buffalo), filed 6/19/2015 ....................................................................... .120
3. Decision of Court of Claims, Hon. Jeremiah J. Moriarty, In, in Malkan v. State ofNew York
(SUNY Buffalo), filed 9/6/2012 ........................................................................... 130
4. UUP-NYSUT v. State University of New York (SUNY Buffalo), Board Decision, filed
8/29/2013 ........ ,. ......................................................................................... .140
5. UUP-NYSUT v. State University of New York (SUNY Buffalo), ALJ Kenneth S. Carlson,
filed 11/15/2012 ....................................................................................................... 153
Volume I
for l~harles P. 2014 ....................................... 176
l 81
C. Oppenheimer, .......... 195
Appendix (Tabs A-P), Declarations, Depositions, and Exhibits of Jeffrey Malkan, Dianne A very,
Susan V. Mangold, Robert J. Steinfeld, Rebecca Redwood French, Shubha Ghosh, Alfred
Konefsky, Isabel Marcus, Lynn Mather, Makau W. Mutua, Charles P. Ewing ..................... 197
Makau Mutua Deposition (excerpt), Dec. 19, 2013 .................................................... 300
Volume II
Declaration ofMakau Mutua, June 26, 2015 ............................................................ 332
Correspondence betwt:en Frederic Ostrove, Esq. and David Sleight, Esq. (October 2014 to March
2015) .......................................................................................................... 354
Documents (2006-2014) .................................................................................... 374
l. Malkan contract with ABA Standard 405(c), Oct. 19, 2006 ............................. 375
2. Policy on LRW faculty reappointments, Dec. 9. 2009 .................................... 382
3. Mutua notice of nonrenewal, Aug. 28, 2008 .............................................. 383
4. Malkan offer letter, July 25, 2000 ............................................................ 384
5. Malkan Deposition (excerpt), Dec. 18, 2013 ............................................... 387
6. Malkan interview schedule, June 25, 2000 .................................................. 398
7. Declaration of President Satish K. Tripathi, Dec. 12, 2013 ............................... 399
8. ABA Self-Study, Jan. 2009, and Findings of Fact, Jan. 2010 (excerpts) .............. .405
9. Mutua Statement of Undisputed Facts Rule 56. l ), June 7, 2014 ............... .4 l I
10. Faculty Bylaws, Clinical Faculty Appointment Policy, Mar. 20, 2009 ............... .414
l11falkan v. Gardner, Erie County
of the (excerpts), current June 1, 14 ..................... ., .......... .461

17-38, Document 22, 02/01/2017, 1961823, Page329 of 487
VI. Declaration ofMakau Mutua in Opposition to

Sanctions, June 26, 2015
0000332

case 1:12-cv-00236-MAT-HKS Document 74 Filed 06/26/15 Page 1of5
UNITED STATES l}JS1'RICl' COURT

WESTERN DISTRICT OF Nll:W YORK
JEFFREY MAD~AN
Plaintiff; DECLARATION
VS.
1l-CV-Ol36(A)
MAKAU W. MUTUA,
Defendm1t.
MAKAU W. MUTUAdeclares "Under penalty ofperj.ury under the la>vs of the United
States of America thattlle foflowingis true and c.e-r@t in a;;lcordance with 28 U.S.C. 1746:
1. I am. tlie Defendant i:n this action. lam currently employed by the State University
nf New York at Buffalo Law School (the "Law School") as a SUN\:' Distinguished Pmfessm and
Floyd H. & Hilda L Hurst Faculty Scholar. Fwn1 D~.e:mber 2007 to May 2008 I was <he iatt.rim
Dean of the Law School. tn May 2.00R I was appuinted D0lil.1 of the Law School and held that
position until Decembt."t' 2614, when l steppt.'C! down,
2. I make thJs. Dedaratiort in. ~)pposition to Plaintiff's mohmi fot Rule l ! sanctio11s
against me and 1:ny counsel, David Sleight. Docket No. 70.
the best of my recol1ectfoti at both Plaintiff's PERB. hearing and at :my deposition in this case. I
have never wavered from that position,
4. Plaintiff's Rule l l motion relies heavily on foimet Defemlant Charles l:wing' s
motion to sever and exhibits therto (,Docket No. 59} to support their argmnent thai: f
intentionally testified falsely at Piaintif:t~s PER'.B hearing and at my deposition in this i::ase:. Thus,
00003JJ
17-38, Document 22, 02/01/2017, 1961823, Page331 of 487

case 1:12-cv-00236-MAT-HKS Document 74 Filed 06/26/15 Page 2 of 5
It is importa:nt that the Court tmderstand the genesis of that motion and the nature of the co11t1ict
it embodies.
5. There are .!ongstandin.g 1ntt."rneeine conflicts at the Law School amongst members
of the faculty and administration. Many of these conflicts go back decades, and predate my
empfoyment at the Law Sd100L Plaintiffhas t--ynically sought to exploit these conflicts for gain
in this litigation. Among other things, he has used the internet as his pulpit, sending e-mails to
the en.rite Law School factiJt:y ahd admfoistratfon ol'l an almost daily basis atte1nptl:ng to win
sympathy frir his position in this case anrl cuny favor with those that opposed my de~ship or my
administration of the Law School. Many ofthe en'iails contain il:rfl:rt111tdfon that Piaintiffw<>uld
only have obtained from, Law Sd100Lf:aootty or staff. hfost oftbe emails are abusive, ci:ude, arid
1h.reatening to me. Many of the l'tnails h~ve been copied to renior officials at the University at
Buffalo. Plaintiff has also widely po:sted what I regard as defamaforymaterial abotitme in
conneetion with this Htigatim1 on the Web. The _purpose of such posts O'n the Web appears to he
to su!Jyand damage my ptofoss.fonal reputation.
6. At the hegi:i'.ming of this Htigatipn, Mr. Ewing wid l were defending this. case
together pursuant to a j(Jint de:fbnse agreement Mr. Ewing was well awa:re at that time that
Plaintiff was dai:ming that in April 2010 I had testified falsely at the PERB hearing about what
transpired at the Aprll 28, 2006 meeting oft.he PttmWtirm and Tenure Conunittre. See..e..g.,
copie!:i ofe~mails attached as Eihibit "'Ac.'' The fu.culty men1hers who'i!e tei;timony and
declarations Defendant Ewing used to su1~rt his motion were like\v:ise awate of Plain.tiff's
claims. See.. e.g. letters attached as Exhibit "B." M'r. Ewing was al:so weil aware that f had
testifo.,"d conslstetitly at my depositi<>n in this action in Dec.einbe.r 2013. Yet, Mr. E:wing's
;."oncem with being tainted by his association 'with me in this action did not prompt him to move
487
case 1:12-cv-00236-MAT-HKS Document 74 Flied 06/26/15 Page 3 of 5
sever until over tv110 years atler
this actimL Nor did Mr. had
to
and then nrnve to sever.
r wou[d like to
Viee Dean fbr Academic him.
the Derm who can also remove them. On.
action because he would take certain cleletednus
told me that l had !;itci to reniove him as Vice Dean and thereafter sent a bitter
to rhe entire Law Schoo.!
Tlm.."C of the other members who "'''n'"""'affidavitsin support of Mr.
motion Rebeecca Isabel Marcus and Mather - also have axes offhefr
own to I removed Ms. Mather as Dir(';tor ofthe Center for Law and in 2D08
eornmltative review of the The review was
of the Promotion and
Center for LHw and in 20! l because
vvoukl
487
case 1:12-cv-00236-MAT-HKS Document 74 Filed 06/26/15 Page 4 of 5
of !he Law School.
Some of the other members who cithcr suhn1iHt>.tl affidavits whose
of his n:ioticn to sever Di;iame
every initiative my
adrninistration introduced while I was Dean and
the Law SdiooL
ki10w11 that
have both times '1'i1hout
JO,
me that rm withdrew frbm defenses agreement The
he t11ed his mf1tion to seV\,'L
lL On or about Mt
IJ<1ull'rt111er1t r;,nr1n1ev Grievance Committee ""'"14-".
testified in the?ERB rn this case . The

m.embcrs were n:wst of the same <nrn<'1rt?,,-.! Mc motion to i:;ever
member-
Rohen Steinfeld did was a '""'!':-''"'"'"' fkn::e

as Dean,
20 I 4, A copy
Grievance Cmnm:ittee has no! issued ae,;:rs:ton on Mr,
dismissal of M.r,
Case 17-38, Document 22, 02/01/2017, 1961823, Page334 487

Case 1:12-cv-00236-MAT-HKS Document 74 Filed 06/26/15 Page 5 of 5
action with preju.clke artd with-0ut t~$ or Ct'>Sts, Dock~ No. 64.
Dated: June 26, 2015
Rome, Italy
0000 33 '1
487
Case 1:12-cv-00236-MAT-HKS Document 63-4 Flied 08/30/14 Page 19 of 47

106
l VOLUME II
2 STATE OF NEW YORK
3 PUBLIC EMPLOYMENT RELATIONS BOARD
4 --------------------------------------------------------
5 In the Matter of:
6 UNITED STATES UNIVERSITY PROFESSIONS,
7 NEW YORK STATE UNITED TEACHERS,

8 AFT, LOCAL 2190, AFL-CIO,
9 Charging Party,
- and - Case No. U-28826
11 STATE OF NEW YORK (State University
12 of New York at Buffalo)
13 Respondent.
14 --------------------------------------------------------
15
16 Public Employment Relations Board

Main Hearing Room
17 Fifth Floor
80 Wolf Road
18 Albany, New York 12205
Wednesday, March 31st, 2010
19
The above-entitled matter came on for hearlng at
20 10:44 a.m., pursuant to Notice.
BEFORE: KENNETH S. CARLSON
Administrative Law Judge
22
23
2: 4 DEAN R. NELSON - COURT REPORTER - 741-9255
0000338
Case 1:12-cv-00236-MAT-HKS Document 63-4 Filed 08/30/14 Page 21of47
[Mutua, Cross] 266
1 in writing, a letter detailing their terms
2 and conditions and then the President
3 refusing to issue an appointment letter?")
4 LAW JUDGE: Can you answer that
5 question?
6 THE WITNESS: No, I cannot.
7 BY MS. SINGER-BLUMBERG:
8 Q Since you've been Dean, have you appointed
9 anybody?
10 A I do not appoint faculty members. I make
11 recommendations for them to be appointed.
12 Q Have you negotiated with applicants for
13 appointment along the lines of what you talked
14 about and entered into a written agreement?
15 A Yes, I have.
16 Q And in how many cases have you done that?
17 A I cannot recall exactly, but more than five.
18 Q And in any of those cases, did the President and
19 Provost not then issue an appointment letter?
20 A They did.
21 Q I'm not clear on the answer. In every situation
22 did the President ultimately issue an appointment
letter?
24 A Yes, they did -- he did.
JM 01317
000033~
Case 1:12-cv-00236-RJA-HKS Document 88-3 Filed OB/24/15 Page 18 of 3917 4
1 Sue , because the Dean Olsen was not -- was away on a
2 trip. The meet began on a note of controversy, in which
facul members argued that the purpose of the meet was
4 not clea:i:-, The reason for that was because faculty members
5 asked how Jeff tv!alkan could be promoted from an associate
6 clinical professor to a full clinical professor when he was
7 not teaching in clinics in the first place, and many
8 questioned why he had been appointed in the first place or
9 been given the title of an associate clinical professor when
10 he was not a clinical professor. But that discussion was
11 was put aside and we focused our attention on discussing
1 Jeff Malkan's suitability as director of the research and
13 writing program and that discussion was very heated .

.1.4 Faculty :members were disappointed about the nature of this
icular program. I can say that I have not been in many
16 facul~y meetings where emotions ran so high and, you know,
much of the angst was about why the dean and the facul had
18 not responded to the very poor state of the legal research
19 and writ program and why no one had, you know, brought up
20 the matter of Jeff Malkan's leadership of the program to a
21 meet for discussion. It was felt by many that --
you know, that Jeff Malkan should not continue to be
3 director of this program, that we should not him
4 because he had failed as director of the program, to
0000340
Case 1:12-cv-00236-RJA-HKS Document 88-3 Filed OS/24/15 Page 19 of 39

175
2
I lead it, and that we should scrap the program and start from
1 scratch rethinking the entire program.
3 So this particular meeting resolved two things.
4 One, that Mr. Jeff Malkan should be given an additional year
5 as director of the program, after which we would look for a
6 new director of the program. ~he reason for this additional
7 year was to give us more time to look for a new director and
8 to give Mr. Malkan time to look for emplo:yment elsewhere.
9 The second resolution of that particular faculty meeting was
10 that the dean would be asked to a appoint a committee of the
11 faculty to study the program and to reconstruct it from the
12 ground up. These were the two resclutions of this
13 particular meeting.
l Q, All r What, other than the -- so is it your
15 testimony that the faculty ultimately recom111ended to Dean
16 Olsen to reappoint Professor -- Mr. Malkan for one year as
7 director?
1, vq A. The faculty resolved it to ask the vice dean for
19 academics, Professor Mangold, to ask the dean of the law
C .school to reappoint Mr. ,Jeff Malkan to a one year term, a
2 terminal -- one year terminal ~- you know, term, as director
22 of the program.
Q. A11 And do the f take any action
24 Mr. Malkan's promotion?
0000341
487
Case 1:12-cv-00236,RJA-HKS Document 88-3 Filed oaJ24f15 Page 20 of 39

176
!,. I do not recall the faculty acting on that part
2 of, you know, the agenda of the meeting. The discussion
3 reg a Jeff Malkan's directors of the program was so
4 heated and, you know, so expressive, I should say, that the
S faculty was consumed at that particular issue and once we
6 decided on these two resolutions, the meet broke up.
7 Were you personally concerned and in agreement
8 that Mr. Malkan had failed utterly as director of the
9 research and writing program?
10 A. Not only was I concerned, I was one of the main
LL advocates for the position that we should terminate Jeff
12 Malkan immediately, not even grant him an additional year
lJ to transition. I made the argument before the faculty that
14 we should not give him one more year, because we did not
15 have an additional year to waste on our students, without
16 them a quality product in this particular program. I
17 felt that we would be wasting our students' resources and
HI time to allow him to continue as director of the progranL I
19 made this particular case. The faculty in it's wisdom
20 decided, you know, to give him one year, and so there was
21 disagreement between myself and most of the on that

2,? situation
All r And then this was just a
4 recommendation the correct, the one year
0000342
Case 1:12-cv-00236LRJ.A-HKS Document 88-3 Filed Osl24/15 Page 21 of 39

. . 177
1 appointment?
2 A. It was a recommendation by the faculty, but
3 understand that a recommendation in this circumstance, means
4 the faculty -- the recommendation does not bind the dean, I
5 want to make that very clear, but the dean would normally go
6 along with the faculty recommendation absent any strong
7 preferences that they would have, but if he. did go against a
8 faculty recommendation, he would then explain to the faculty
9 why it was that he decidett not to abide by their

10 recommendation.
11 Q. And what did Dean Olsen do with the faculty's

12 recommendation to reappoint Mr. Malkan for one year?
13 A. 'l'he dean never reported back to the faculty. We,
14 I think, expected the dean would come back with a report
15 based upon our recommendations, but no report was ever
16 forthcoming. Mr. Malkan continued to b~ in the building.
17 Q. And did Dean Olsen then promote Mr. Malkan to
18 clinical professor and renew his term?
19 A. Most faculty did not know what actions the dean

20 had taken with respect to Mr. Malkan, because normally when
21 the dean acts on such a matter he sends a letter to the

22 particular faculty member. He may decide to announce his
23 decision to the faculty or he may not. In this particular
24 case, there was no announcement to the faculty as to the
000034J
Case 1:12-cv-00236-MAT-HKS Document 63-4 Filed 08/30/14 Page 25 of 47
[Mutua, Cross] 292
1 Q So when you became Dean and you said that's when
2 you first saw his appointment letter, is i t your
3 testimony, is it your claim that Nils Olsen
4 promoted him without going to the committee and
getting a vote?
6 A It is my understanding that the Dean acted ul

---
7 vires.
8 LAW JUDGE: Can you spell that?
9 THE WITNESS: U-1-t-r-a v-i-r-e-s.
HJ A That he acted without a recommendation from the
11 from the committee.
12 Q I want to go back to something else you said about
13 hiring and firing. We talked generally about
14 renewals and nonrenewals and letting people go,
1 '.i and you said that sometimes the decision comes
16 from you, but it then has to go to the Provost and
17 the President, som~times it just stops at you, and
18 you gave, when we went through the examples of the
19 different categories, you said when it comes to
20 uncts, for instance, it comes from you?
21 A
22 You, specifically?
23 MS. HOMES VANCE: Could we just take a
'.24 moment, please, before he answers that
JM
0000344
487
[Mutua, Cross] 313
1 copy of Jeff Malkan's appointment letter from the
2 Dean and the documentation from the President?
3 A As soon as I became Dean, I a review of the
4 Research and Writing Program, and I, as Dean, have
.5 access to all the files. And in that exercise I
6 saw Jeff Malkan's file.
Q So you knew he had a clinical appointment besides
8 his appointment as Director of Research and
9 Writing Program?
10 A I noticed that he was listed as a clinical
J.1 professor.
12 Q And you said one of your first orders of business
13 was going to be to remove him as Director of the
14 Research and Writing Program?
15 A Exactly.
16 Q But you knew that that wouldn't impact his
17 appointment as clinical faculty?
18 A No, I did not. In fact, I thought that Jeff
19 Malkan had been brought to the Law School
20 specifically to teach in the Legal Research and
Writ Program.
Q Did you
23 A So my view -- my view was that if you terminated
24 his appointment as Director that you could
JM04364
0000340
Document
Case 1:12-cv-00236-tvjAT-HKS Document 63-4 Filed 08/30/14 Page 27 of 47
[Mutua, Cross] 314
1 subsequently terminate his appointment as an
2 instructor in the program.
3 Q So you didn't read the letter that Nils Olsen had
4 ven to Professor Malkan?
5 A As I've said before, I think that the Dean acted

beyond his authority in issuing that letter.
7 Q So you didn't think you were bound by the terms of
8 that letter?
9 A No, I did noL
10 Q And did you ever check with Employee Relations
about that?
12 .A Did I ever chat with Employee Relations?
13 Q Check.
14 A Oh, check. No, the letter itself, I mean, speaks
15 for itself. It was it's an outrageous ~iece of
16 1 craftsmanship.
Q So you didn't feel like you needed to consult with
lB anyone
19 A No, no, no, I did not. I'm trained as a lawyer,
20 and any lawyer worth his salt can determine on the
21 first pass that the letter is, you know, just an
2 outrageous ece of legal writing.
2 But yet you referred to some of it specifically in
24 your non-renewal letter to Jeff?
0000340
[Mutua, Cross] 315
1 A I don't understand what that has to do with
2 anything.
3 Q Well, why did you refer to any part of it if you
4 thought the whole thing was basically worthless?
5 A You can refer to a letter to make a case that it
6 is worthless.
7 Q So you didn't feel duty-bound by any of the terms
8 of that letter?
9 A No, I did not.

10 Q Can we show --
11 LAW JUDGE: What are you looking for?
12 MS. SINGER-BLUMBERG: The nonrenewal
13 letter, which is Joint Exhibit 7.
14 LAW JUDGE: August 28, '08 letter?
15 MS. SINGER-BLUMBERG: Yes. I have
16 extra copies.
17 LAW JUDGE: For the record, the witness
18 has been handed a copy of Joint Exhibit
19 No. 7.
20 THE WITNESS: Yes.
21 Q Paragraph 3 of this letter that you sent --
22 A Yes.
23 Q -- specifically refers to the appointment letter
24 that we were just talking about; right?
000034/
487
Case 1:12-cv-00236-MAT-HKS Document 74-3 Fifed 06/26/15 Page 1of3

Septem;lJer -1. 7,2(i14
Mmy R Dav'iS
AU:orney Grievance Com;njttee
438 Main Sttoot, Suite 800
Buffalo, NY 142()2-3212
R~: Cgmplai}\t l)f ~ha:des Patrick.ii-~ & -etal
Dear.Ms, Davis;
1writi11g inrespoll$etothe;cah9Jte;llalUed 1.<0111plairi,~, ~ C~ -of wbiQh l repeivedlast_ week 1
want to. State categori;;illiy ~tjhe D1p1aifltis compl~ly and utterly withoutmerit_ I did not, ~nd never
have, violated anY Ney-v Yor:k&tat,y;~~pfp.tofiij~(Jll1.J.l(,~1,1~iw~. ltesi;ified_ frlithfullyin The MATTER
OF UNITED UNIVERSITY P'R<;)f:l:;s~rQ'N$, NEW YPRJ(.:SJ'A'.I'E:.tINJJ'l3DTE~CHER,S, AFT,
AFLCIOv,.STATE.OFNEW.Yb~ (StA:rEtlNIVERS,0''0FN~W YOR.K AT
BUFFALO (flon. K.~eth S, earl~n, ~~1l~sfi'.>1e/Judge _andinJBFFREY MALKAN v.
MAKAU W. MtrflrA. AND OBAR.LES R,EWING{U.S,.b.C, I.2~V~01!36(A)),
note ~at I na've prevailed against Mt!!kafi iri every foru111 Where he. has btoughl these
claims against:me or the. University atlluffalo _mTf!E Mf\TTER OF UNITED UNIVERSITY
PR OFESSl:ONS, abt~ve,, befol'.tl theNf:W ,'tfo~kStaw fl.Jr.pl9ye<::. R~iations B9ar-d (PERBJ, tll
Admil1istrative Law'ilndge'foUild mytestimili~y ciblean(i disn1tss!lldMalk~'~ c!ain:ls against me. nmt
decisi9n was afli~ Qttap~a;L~i'ol'e PE~~ .Jli. JEFFR;EYMALKAN v.STA'tE OF NEW YORK
(STATE UNIVERS-l!Y OF NE\V Y9~AT'BDffA~QJ[OtCl. ~ptjarty, J.,, Ag2(>,2tJ13], the New
York State. Court of Claims disu1isse(i Ma&<m,;s 4:laims agi>it1:sttlle Lh#vers~tyJ a.ul'ffti.o .ff:w >vrongfu1
dismissal. He had brought. d)ecsui+ hef~theCowt orC1.ail11s after failing at PERB; No oomt orjAdidal
procec<lin.ghas_everfhund~tI!mvet:ivf;rm~any~al$estaj;metl,tsonlliismatter. Nrir.havelever
been accused cyf, or c.harged witl:l-, making; afals~siat~nt.
00003b
I want to note for the re,~rtH!:l.an:n1s: i::-0rat~lmntlhas: bi::ien

have either bee11 opposed to rnytenurp as
posts at the Law Schooh AH (;ftliem itre complaint
is met1nt to harass and persecute m,e;. at ilie Law
School until June2014. complaint- and iobHized uie other complainants ~after I
removed him as Vice DeatL At which !informed him that l:iewouJd no lo1~gi:r be Vice
Ewing became agitated, threatening, and directly told methat I. would regret m~ ac~ion because
would . sreps ivgaJ"dingMal~'s si,1it. .81)011 thereafter, Jt<J $CVeredhi$self as my co,.defendant
in that . I want to make it cle<ir that
Ewi11gwas n9tatth ?Q06, CCPRxneeting, nor hat!he testified, or
said in any way, thalImade any false smtements regardin~ ~Ma:Iiqin suit ll!ltilnow .. Furthermore,
had always direi:;tly professed sumiortfor me although I was told by many weH regarded members
of the Law SchooloonlJrJ.U1liiWtl:ll;it he \.Yasfurio~l~agit~~i,ng fermy~nmvhl )l&Deanbehind my back. I
caI1 oniy conclude that Ewing hasJ'iled lliisuomplahttb~i,;eh(!lis drive~ Py piqu,e, tn;llice, ~nd anger
after losing his position as Vice Dean get meremovoo ai; Dean.
Tltreeothet compiami.mtll ~Reb'1l~Frenc~Jsllhel Marc1rn, ~n~J'"YJ'l!l Mather -bave a;1'es c;f

own to. gri4 lrf@ovedMatlier~ Oire\:ltorofthe;.'Sal(iy Ce,ter fort;;w a,i1Po1!yin2Q08 a
review. Frei:wh abruptly re;;;jgnedat; Dh~t~:>.rof fue ~\ly Certter forLlw<Policy fo 2011 ~use ofa
difference .in rn<'tnagement styles ... Einaily,1.remP.Y;eA ~fei:smrMare~~. Pi~t()r .\)f Meml\tkinal
Ptogra.ms because shewon1dnotattend:leader$hip ~~gs,;qi; SPcPW!'tflj~ init~ati~ pf theJ.;~ ~hoot
renminin,g colJ:l,plaimru.ts - Dirmtie Avery, Alfred l{tme&lcy, $~ Man~old,Martha McCh1s~y,
John.HenrySch1e;gel-havest!'elil40Us1yoppq$eqvirtuajlYl:lY~illiti;i:l.ivl;}thatmYad.tninistrationhas
introduced m.th:eLJ.tw School .. This J;r91Jtl isp()Jloq~udly+~fef'l'..41 tvasthe ''T;:al'aJfy.'' .It ii;batllip.g th~t
both Ewing and Mather would file this complaint even though they were not ptesnt at the:2006 GCPR
basif!.qft,hei!'. cdmmaiht.
I have known for a. while thittMalkan haf bi;:en .in regu;rr contact wi thi;: .;:.c;mplairuits I
1eri:n1r1at~m.
his emy;loymenffrom the Law Sch?olin2008, He freq1l~tly writes abusiw emails toJne and
the sen.ior administration of tl)e L;a.w scb<Jot ~th~ Yniv~rnity at Buffalo, Ht? dilsoominates l1'UJch ofthls
invective. cin. social media and assiduously i;:ourt,l\thie ~glari)rf:\$8 tQ wver tjle He publicly threatens
and helitt!esanyone whom he'deemsun:;;upportiveofhissit; Hi:s ~haviorsugg~sthat he would.rather
tarnish the- reptati()ofoth11l!'sin tb:epubljc ~fotfuiinrathertlian vmdlcatehls.daims before.a court of law'
To concludt, l ask the Attorner Gtievance. G\)mmittee to f1n;d thjwc()ft\piaint for what it is - a
malicious and unt(;un~4 attf.:linpt by dis~tl:t'id ani:l bilmu1nnemben; iJf tM r,awSc.;hpoJ .faculty to
m
tarnish my gOQd.n!>l)'.le l,lll(I. t({ lla.@.SS a\tQ. pel;~ ltle fl\.clr filtile attempts ro change the leadership
the Law School. I find it imfailiQtnable ~J~yidl.ial1,1 \V.~9 .lh:qu.~tly qct .in 11nethical and. underhanded
the L&w School have the temerity to file a con:i.pfarl'.tt ofpt;-0i!;:s.sw11al me,
17-38, Document 22, 02/01/2017, 1961823, Page348 of 487
Case 1:12-cv-00236-MAT-HKS Doc1Jment 74-4 Filed 06/26/15 Page 1 of 2
UNITED STATES DISTRfCTCOURT

WESTERN DISTRICT OF NEW YORK
JEFFREY MALKIN,
Plaintiff, 12CV0236(A)
vs.
MAKAUMUTUA,
Defendant.
CERTIFICATE OF SERVICE
I hereby certify that on June 26, 2015, I electronically filed the foregoing with the Clerk
of the District Court using its CMIECF system, which would then electronically notify the
following CM/ECF participants on this case:
Frederic D. Ostrove
Leeds Brown Law, PC
One Old Country Road
Suite 347
Carle Place, New York 11S14
rostrove@lmblaw.com
Bryan Arbeit
Leeds Brown Law, PC
One Old Country Road
Suite 347
Carle Place, NY 11514
barbeit@leedsbrownlaw.com
Robert E. Ruggeri
SUNY Office of General Counsel
University Plaza
Albany, NY 12246
robert.ruggeri@suny.edu

Jessica M. Baker
SUNY Office of General Counsel
University at Buffalo
3435 Main Street
216 Harriman Hall
Buffalo, NY 14214
jbaker4@buffalo.edu
DATED: Buffalo, New York

June 26, 2015
ERIC T. SCHNEIDERMAN
New York State Attorney General
BY:
S/David J. Sleight
DAVID J. SLEIGHT
Assistant Attorney General
Of Counsel
Main Place Towers
350 Main Street-Suite 300A
Buffalo, New York 14202
(716) 852-6274
david.sleight@ag.ny.gov
00003~3
. Correspondence between Frederic Ostrove, Esq. and

David Sleight, Esq.
OOOOJJ4
487
Case 1:12-cv-00236-RJA-HKS Document 84-2 Filed 07/23/15 Page 52 of 154
STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL
EHIC T. SCHNEIDERMAN DIVISION OF REGIONAL AFFAIRS
ATfORNEY GENERAL fluFFALO Rw10NAL Omrn
Telephone: (716) 852-6274

March 12, 2015
Via facsimile: (716) 551-1875

Hon. H. Kenneth Schroeder, Jr.
United States District Court
Western District of New York
2 Niagara Square
Buffalo, New York 14202 ..J350
Re: Malkan v. Mutua et al

12-cv-00236-RJA
Dear Judge Schroeder:
I ain 'vriting to request that you schedule a conference to djscuss an issue that has arisen
in this matter. Since October 2014, Plaintiff's counsel has been threatening to file a Rule 11
sanctions motion against me. Plaintiff and his counsel allege that my client pe1jured himself at
his deposition because he testified one way about what happened at a meeting and other people
have either testified or provided affidavits stating that something else happened at this meeting.
They further allege that I have actual knowledge of this alleged pei:jury based on the weight of
the evidence and the credibility of the witnesses.
I believe Plaintiff's counsel has no basis in law or in fact to bring a Rule l l sanctions
motion and will file a cross motion for sanctions if counsel proceeds with his threatened motion.
However, before we get to that point, I request that the Court meet with counsel to discuss this
matter, as it could be beneficial in avoiding the unnecessary time and expense attendant to
litigation of this ancillary issue.
Respectfully yours,
DAVID J. SLEIGHT
cc: Rick
(via email and U.S. Mail)
MaiuP!aceTowerc,Suite 300A, 350 Main Street, Buffalo, NY 14202 (716) 853840() Fax;(.716) 853"'>57 l
b.ttp;//www.ag.ny.gov 000224
Document
STATE OF 'NEW YORK

OFFICE OF THE ATIORNEY GENERAL
ERIC T. SCHNEIDERMAN DIVISION OF REGIONAL AFFAIRS
AITORNEY GENERAL BUFFALO RtGIONAL Omct
Telephone: (716) 852-6274
March 12, 2015
Via e-mail and U.S. Mail

Rick Ostrove, Esq.
Leeds Brown Law, P.C.
One Old Country Road, Ste. 347
Carle Place, New York 11514
Re: Malka:n v. Mutu:a etal

12-cv002.36-RJA
Dear Mr. Ostrove:
This letter will serve as my reply to your February 20, 20 I 5 etnail to m.e in which you
forwarded to me draft motion paper in connection the Rule 11 sanctions motion that you and
your client have been threatening me with since October 2014.
It is regrettable that you have decided to pursue this course of action. But, given that you
appear to have made up your mind, r am going to explain my position one last time, for the
record, and to put you on notice, so that you win not later be able to compll!in that you and your
client did not anticipate the consequences of your actions.
Your draft motion argues that I have violated Rule 11 because I cite Mr. Matua's
allegedly perjurious testimony in my Rule56.l statement. As is clear from that paragraph you
r"'t""''""''"" I am not citing Matua's testimony or the testimony of the other deponents in
action for the truth of the matter asserted; rather, I included that paragraph and cite that
testimony for the purpose of providing continuity to the narrative and to identify a fact issue
for the Court I have never cited Mama's testimony regarding what occurred at the Committee on
"-'"""''"'"'' Promotion and Renewal for the truth of the matter nor would I,
because, as our Summary Judgment Motion reflects, we do not think it is relevant to the legal
issues in this case. 'N'hile your client seems to be obsessed with all tt1ings Makau Matua and, in
particular, what Mr. Matua says about what occurred atthe Committee on Clinical Promotion
and Renewal meeting. it is irrelevant to his process claim. Wbat is relevant is what happened
afterward.
Our and independent grounds summary judgm.ent are ""''"'''""' that

your client did not have a protected liberty interest because he did not have a legitimate
Mainl"laQ Tower, Suit"" JOOA, 350 Main Street, Buffalo, NY l4ZCl2 k (7 l6i 85.J.'84(11) Fndn6J 8H85H
000.225
http>//www.ag.ny.gov
Rick Ostrove, Esq

March 12, 2015
Page 2of4
expectation of continued public employment based on the letter agreement between him and Nils
Olsen. Second, that your client received all the process he was due in connection with his
dismissal. And, lastly, that in the event the Court finds that there was a due process violation,
my client is entitled to qualified immunity because he did not '\liolate a clearly established right
of your client. Thus, we do not deny that your client was offered and accepted a tenn
appointment as a clinical professor that expired on. August 31, 2000. See Statement of Facts
'1!30..31 arid accompanying exhibits. What we do deny, however; is that your client had a
legitimate exp.ectation of continued employment past August 31, 2009 based on his contract with
Olsen, becailse Olsen was prohibited by the SUNY Board ofTrustees' pdlicies from offering
him a tenn appointment longer than three years, .and your client knew it.
Your draft motion papers also misstate the law on the knowledge standard applicable to
both Rule l l and RPC 3.3. As you acknowledge in your draft memo oflaw at page 17, there is
110 case law interpreting the definition of "actual knowledge" under RPC t.O(k). There is;
however. a Second Circuit decision that discusses the ..actual knowledge" standard and that case
is binding precedent on our court. I previously encouraged you to read the decision in In Re Doe,
847 F.2d 57 (2 00 Cir. 1988); and cases that cite it, more closely. Instead, you have either not done
so, or you have applied sophistry toits clear meanin:g in order to mold it to your purposes. Doe
does not support the proposition that a lawyer's "actual knowledge" of a witness's tafse
testimony is judged by an objective standard, In fa:ct, to the contrary, it support.s the proposition
that it is judged by a subjective standard, that is, "actual knowledge.'' The Second Circuit in Qoe
approved of the definition used in Virginia for when ..actual knowledge" is cJearly established.
Id. at 62. '"[I]nformation is clearly established when the client ackhowledges to the attorney that
he has perpetrated a fraud on the coilrt. '" Id. (emphasis in original) . That is not an objective
standard. The Second Circuit went on to cogently explain why actual knowledge had td be the
standard:
Our experience indicates thatifany standard less than.actual knowledge

was adopted in this context, serious consequences might fuUow. If attorneys were
hound-as part of thei:r: ethical duties to rep<>rt to the court each time they sttongiy
suspected that a witness lied, courts would be inundated with such reports. Court
dockets would quickly become overburdened with conducting these collateral
proceedings which would necessarily hold up the ultimate disposition of the
underlying action. We do not believe that the Code's drafters intended to throw
the court system into such a morass. Instead, it seems that the only reasonable
conclusion is that the drafters intended disclosure ofonly that information which
the attorney reasonably knows to be a fact and which; when combined with other
facts in his knowledge, would clearly establish the existence of a fraud on the
tribunal.
Main-Place!.fower;-Suite 300A;.lSC:HWam Street;:-B.uffato; NY 142e2--(71tt)-853'8400 Fain {'?-16)853'8571-

000226
http1//www.ag.ny.11ov
00003~/
Rick Ostrove, Esq

f.,farch 12, 2015
Page 3 of 4
To interpret the rule to mean otherw:ise would be to require attorneys to

disclose mere suspicions of fraud which are based up<Jn incomplete infonnation
or information which may fall short of clearly estabHShing the existence of a
fraud. We do not suggest, however, that by requiring that the attorney have actual
knowledge of a fraud before he is bound to disclose it, he must wait until he has
proof beyond a moral certainty that fraud has been committed. Rather, we simply
conclude u'lat he must clearly know, rather than suspect, that a fraud on the court
has been committed before he brings this knowledge to the cou;rt's attention.
fil.at 63. Thus, in Doe,.and all ofthe cases that I have found that cite it for its interpretation of
"actual knowledge," what courts find determinative is whether evidence ofactual intentional
misconduct has been brought to the attqmey' s attention. Soo Jd. (two conversations where client
advised lawyer that witness had lied at deposition insufficient to establish actual knowledge).
See aiso !J.!1ilitd State....Y,. Shaffer Eguipment Company, 11 F.3d 450 (4th Cir. 1993) (actual
knowledge by government attorneys that EPA on~site coordinator had misrepresented academic
credentials and achievements); United States v. Shyne, 2007 U.S. Di.st LEXIS 26994 (S-D.N.Y)
(circumstantial evidence insufficient to establish actual knowledge supporting finding of
prosecutorial misconduct); Sigma~Tau IndustrrieFrurnaceutiche v, fom:a, 48 F. Supp. 2d 16
(D.C. 1999) (tesfonony by attorney thathe was "surprised'' by witnesses allegedly false
testimony insufficient to establish attorney had actual knowledge of its falsity); United States v.
fausto Del C!;l!pio-Cotrin!!, 733 F.Supp. 95 (S.D. Fla. 1990) (actual knowledge by criminal
defonse counsel that client had tled jurisdiction at time he requested trial continuance sufficient
to trigger counsel's obligation to advise court the he believed client would not appear at trial);
Addamax Com. v. Open Software Foundation, l 5 l F.RD. 504 (0. Mass 1993) (attorneys
attempt to have witness revise prior affidavit based on evidence that prior afiidavit was.
inaccurate insufficient to support subornation of perjury); People v. DePallo, 96 N. Y .2d 437
(N. Y. 200 I) (contradictory statement by client to defense counsel prior to testifying differently at
trial sufficient to trigger counsel's obligation to notify tribUnal of fraud upon the court).
Additionally, New York's RPC is essentially the State's adoption of the ABA Model
Rules of Professional Conduct (1983). In ABA Fo1mal Opinion 87,353, the "actual knowledge"
standard is discussed. See ABA Formal Op. 87-353 ( 1987). That Opinion advises that it wiU be
"the unusual case" where the lawyer "does know" that a client intends tl) commit perjury, and
that can only be established by stated intention" to perjure himself
Where is your evidence in this case that I know that Mr. Matua testified
falseiy at his deposition? There is no evidence that Mr. Matua ever acknowledged to anyone that
his was false, !et alone to rne. In fact, testimony deposition was ,,,,...~,..,,,.,"'
consistent with the testimony he gave at the PERB hearing.. AH you have here is one witness to
an event that remembers it one way and other that it another way; which is
"1w f't;..;:!'.'.fl>w<:r, Stlit:!A,.3SO.~i.ain $t~r,Buffalo,.NY . 14Ul2. . .L7.H't!S538400 . Fa>:: .(U6}.853.S571

http.r//www.ag.ny.gov 000227
00003J0
Case 17-38, Document 02/01/2017, 1961823, Page355 of 487
Rick Ostrove, Esq

March l2, 2015
Page4of 4
the most usual of circumstances in litigation where memory is involved. At best. this is evidence
that might lead :me to suspect that Mr. Matua's recollection ofthe event is not accurate; however,
it is not evidence that leads me to believe he is intentionally lying. There is a distinction and you
know this, or at least you.should, What you are doing here is asking me to weigh evidence and
assess the credibility of witnesses in order to come to a conclusion on an issue of fact. That is
not my job as counsel: that is the job of the trier of fact. In suw, neither you nor I nor your client
has personal knowledge of what happened at the meeting of the Committee on Clinical
Promotion and Renewal on April 2~, 2006, because none of us was there.: we only "know" what
other people say happened.
Lastly, I would like to address yout client's recent conduct in this:litigation and, in
particular, his constant direct contact with me by e-mail that I have asked you stop. As it is clear
that you have little control over your client, I am going to give you the benefit of the doubt and
assume that you do not know the scope of th-at contact. Smee the beginning of this case, your
client has been sending a constant barrage of e~mail blasts to the entire law school faculty and
staff, some of whom are witnesses, and in the case of Mr. Matua and Mr; Ewing, parties and
former parties. I would characterize these e-mail blasts broadly as diatribes against Mr~ Matua
and other UB administrators that your client feels have wronged him'. Randy Oppenheimer, when
he was involved in the case; asked you to get your clie~t to stop these e-mails, but they have
persisted. And, although many of the faculty at US frnds these e-mails to be harassment, I have
told them that theTe is nothing that I can do to stop your client from exercising his free speech
rights. However, since roughly September 2014. your client has been writing and e-mailing me
directly. I do not think this is appropriate, since he is n:presented by counsel and, thus, r cannot
respond. I wouldestimatethathehas sent me between 30 and 40 e-mails and I want it to stop.
At this point I consider it harassment with the only purpose being to vex and annoy me.
In conclusion, I am done .arb'Uing with you about this issue. I am not the type of lawyer
that easily threatens a Rule 11 sanctions motions, and I have never made one, nor has one ever
been brought against me. However, if yo.u proceed, I will file a cross motion for sanctions
against you and your client. Your draft motion is ftivolOus; has no basis in Jaw or fact, and
appears to serve no other purpose than to harass and vex me, Similarly, your client's constant
direct contact with me and my client is: improper and also appears to have no other purpose than
to vex and harass us.
I trust this properly advise8.
Very truly yours.

t " (\ \\ ('("'\ . ('
~-)~rl
DAVID J. SCEIGiff
-\dv;4J--
\; ,
DJS/nnp
. .Mai!i . Place.Tower, ..S.uite.10M+.35()_MainStmet,.Buffalo,..NY.. 14202-!. :(116i85J,&400..~.F.=.(716).S53'857-l .... -000228.
http//www.ag.ny.gov
000035~J
) case 1:12-cv-00236-MAT-HKS Document 70-3 Filed 04/14/15 Page 32 of 37

. Brandon Okano
From:
Sent:
To:
Subject
Brandon Okano
Monday, February 23, 2015 12:55 PM
Brandon Okano
Malkan - Exhibit M
I
i
[
On Nov 3, 2014, at 2:59 PM, David Sleight <Daviq.Slelght@ag.ny.gov> wrote:
Rick,
I h~ve reviewed the facts and the authorities you cite, and done some additfonal research. I
I
disagree with your analysis of the law and the facts on this Issue. I suggest you read Doe v.
Federal Grievance Committee, 847 F.2d 57 (2d Cir. 1988), more closely, and also read
subsequent decisions that cite It, for a fuller understanding of the knowtedge standard. I also
remind you that the bringing of baseless Rule 11 motion is In itself sanction able conduct
... .. .. ....,.."' ........... ., ... - .. ... .,.' .... _.......-.-..... .... ~ .... ' ~~. .-~ ' ... .................. .
~
From: RJck Ostrove [ma!lto;Ros!:rove@l.eedsBmwnLaw.com]

Sent: Monday, October 27, 2014 6:54 PM
To: David Sleight
Ce Biyan Arbelt
~bject: RE: Malkan v. Murua
Dav_id,
i
. I have carefully reviewed your below email as well as the email from my client t !
which you have forwarded tome. I wanted to have a telephone discussion'with
you about this issue. But, if you aren't comfortable with a phone call, which I II
understand, I'll express my current opinion to you in this email. I strongly urge !
you to carefully consider your position in light of the information I provide you
below.
I r.
f
As you know, Rule 3.3 precludes you from using or offering evidence that you
"know" to be false. If you "know" the testimony is false, you also have a duty to
remedy the false testimony and not submit it to a court. Below yo:u have not
argued that you don't ''know'' your client's testimony to be false.
However, I assume you may argue that you don't "know" it false based on "the
word" ofyour client. Rule 3.3 does no~ allow you to blindly accept the word of i
your client. According to Comment 8, a lawyer "cannot ignore an obvious
falsehood." Comment 8 indicates that you have to have a "reasonable belief'' that l
the testimony is truthful. NYCLA Opinion No. 741 (attached) sheds additional
light on the issue. It provides a discussion of "knowledge" in this context. Under
ll
this opinion, which cites a Second Circuit Opinion, .a lawyer cannot rely on his
client's statements if it is unreasonable to do so. See also In re Grtvance
1
11
j ..
00003ud
) case 1:1.2-.cv-110236-MAT-HKS Dociunent 7Q.-a Filed ,04/14115 .Paae. 33 of 37

, Committee. o; the. United States Dtstrict, l.Jlstrtct OJ Gonnectzcut, John J.JOe; 1547
F.2d 57, 63 (applying an objective test to whether a lawyer has actual knowledge,
by noting that the lawyer must have a "reaaonable" belief that his client is being
truthful). The objective portion of the "knowledge" rule is necessary, otherwise
everyone would just say they believe their client, regardless of how unreasonable
that belief may be.
Other than your client's "word," there is no basis to believe the truth ofMutua's
statement. Given the overwhelming evidence disputing your client's testimony~ no
reasonable person could believe him. Eight tenured professors testified that your
client has lied, while not one person supports your client's position. If you reachc;:d
ou{ to the !other professors and they refused to support Mutua on this point, or
worse, confinned that Matua lied, that adds further reason for you not to believe
your client (not that any additional evidence is needed). I strongly Sl.1pect that you
and/or your client have made efforts to get at least one person to support Mutua1s
version of events. Yet, no one has done so, likely because the fact is indisputably
false. In addition to testimony from eight disinterested non~parties, Avery and
Mangold have contemporaneous notes disputing Mutua's testimony. There is no
reasonable explanation as to why those notes would exist if Mutua wasn't
lying. Moreover, as you know from' reading Ewing's brief, there are accounts of
other discussions about the vote that occurred after the vote happened. It seems
impossible to believe that all these professors fabricated all thisinfonnation.
In short, no reasonable person can read Ewing's brief and believe that Mutua has
been truthful. RPC 1.0(k) specifically says that "knowledge may be inferred from
the cirCumstances." Having read the overwhelming evidence disputing your
client's positlo~ any reasonable person would have to conclude that Mutua
definitely lied. . .
fu your 56.l statement, you offered Mutua's false testimony as evidence there was
a sharp dispute"regarding whether Malkan. was promoted. I provide you with this
case law and warning to give you a chance to remedy this on your own. I
sympathize with.the fact that you are in a difficult position, and I doo't like
sending you this email. But, it is your client's perjury which has put us both in this
position~ Obviously, you will take whatevei; actions you think appropriate. But, I
suggest that before you decide how t.o proceed, you review the information I have
provided, carefully consider your options} and possibly conduct additional legal
research.
After you have carefully con8idered your position. please let me know how you
intend to proceed. I assure you, before I file any motion, I will .~efully consider
your position and teview any case law that you provide to me. I assure you, I will
not file any motion unless I think: it is meritorious and I gladly review any cases or
arguments that you want me to consider.
. 2
00003bl
Rick Ostrove
LEEDS BROWN LAW, P.C.
One Old Country Road., Suite 347
Carle Place, N.Y. 11514
(516) 873-9550
LQ!?trove@LaedsBrownlaw.QQill
From: David Sleight [mailto:Di'!.Yid.Sleight@ag.ny.gov]

Sent: Thursday, October 23, 2014 4:23 PM
To: Rick Ostrove; Bryan Arbeit
Subject: Malkan v. Mutua
Rick and Brian,
There Is an issue that I need to resolve with the two of you before our scheduled conference
call tomorrow can take place.
I presume you know about your client's O~ober 18, 2014 letter to me. In lt, he advises me that
he believes that I have stated facts in my court submissions, on the word of my client, that I
know to be untrue. He goes on to state that he has instructed the two of you to flle a Rule 11
motion for sanctions against me. He then posted this letter on a list severer and sent an e-mail
to the entire faculty ofthe US law School and various UB administrators with a link to the
letter.
Needless to say,! am not pleased that your client has now decided to expand his sphere of rage
and vitriol by engaging in personal, public attacks on my integrity as a lawyer when I am just
doing my job and representing my client pursuant to the obllgatlons that I .owe him as an
attorney, I am a graduate of the US law School and have practiced law in Buffalo for over 25
years, and never has someone called my integrity as a member of the bar into question ..
Moreover, ! intend on practicing law In this community for the foreseeable future and do not
appreciate my professional character and fitness being sullied to a Large portion of the legal
community
What ls even more alarming than your client's threat of a frivolous Rule 11 sanctions motion is
his intimation that the two of you may actually be. considering bringing such a motion on his
behalf. i take such a threat very seriously and will defend my integrity as an attorney by all
means necessary and proper. In light of the foregoing, I am reluctant to engage in any informal,
off-the-record conversations with the two of you unless you can ~ssure me that you do not
lntend to file a frivolous Rule 11 sanctions motion.
I am also reluctant to engage In inf9rmai conversations with you because it seems that portions.
conversations always end up In your client's frequent e-mail blasts to the world. Please
see the attached in this regard, Settlement discussions pursuant to the Court's ADR plan are
supposed to be confidential. And, If your d!ent cannot exercise enough self-restraint to not
disclose confidential information obtained as a result of settlement discussions, the least he
could do Is convey that Information accurately (Rick, you know that ! never said I had authority
to offer your dlent salary in settlement or that I demanded he apologize to Mutwa as
of a settlement),
0000302
487
Case 1:12-cv-00236-MAT-HKS Document 70-3 Filed 04/14/15 Page 35 of 37 I
Counselors, it h~s been dear to me for some time that you cannot always control your client,
but l have never questioned your professional integrity because of this. I understand: as lavvyers
l
I
all we can do Is co unset, but clients sometimes do not heed our advice. The tone of this
Utlgation amongst counsel has thus far been courteous and I would like to keep it that way;
however, if you file a frivolous Rule 11 sanctions motion that wm change, So, please let me hear
from you regarding the above.
00003u.1
487
HI IT T
487
from: Rick Ostrove

Sent: Friday, February 20, 2015 5:15 PM
To: 'David Sleight'
Cc: Bryan Arbeit; Brandon Okano
Subject: Ma!kan v. Mutua
David,
I have spent considerable time working on this motion and have considered the
points you raised in your emails and our conversations. After careful
consideration, I think your position is dead wrong. I am convinced that you know
your client has lied in two proceedings about material issues. Any rational person
would easily reach that conclusion, despite your client's "word." I am sorry that I
have been put in the position to force you to take action and I wish you corrected
this without warning. Nonetheless, here ls one more, final warning: you and your
client have 21 days safe harbor to take corrective actions before I file the
attached motion.
! have not attached the exhibits because you have copies of them 1 but if you
cannot locate an exhibit, !et me know and ! can forward it to you. Additionally, if
have any other case law or points you want me to consider prior to filing, I'm
open to considering anything you wish to present.
Rick Ostrove
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, N.Y. 11514
(516) 873-9550
rostrove@Lees;!sBrownLaw.com
OOOOJG;J

4
I Case 1:12-cv-00236-MAT-HKS Document 70-4 Filed 04/14/15 Page 14 of 62
I September20, 2012
l VIA CERTIFIED MAIL
I
I
Satish K. Tripathi, President
501 Capen Hall, SUNY at Buffalo
Buffalo, NV 14260
I Re: Makau W. Mutua and Lucinda M. Finley

Malkan v. State of New York (SUNV at Buffalo), Claim 1f 116355
! Dear President Tripathl,
l
}
Last week my NYSUT/UUP counsel, Marilyn RasklnOrtlz, Esq., received the enclosed letter from
Assfstant Attorney General (AAG) Wendy E. Morclo, Esq., which was prompted, I believe, by the
f
l Intrusion Into this Htlgation of Vice-Provost for Faculty ~ffairs, Lucinda M. Finley. In my opinion the
AAG's letter could reasonably be understood as an attempt by you to use the resources of the Office of
the Attorney General (OAG} for an Illegal purpose, viz., to suppress the evidence ofa crime.
Ori three occasions ln the past eleven months- November 11, 2011, June 18, 2012, and September S,
2012 - I have provided you with evidence that Dean Makau W. Mutua committed perjury in the first
degree at the hearing of the Public Employment Relations Board (PERB) on March 31, 2010 and Aprll 11
2010. This evidence took the form of the transalpt of Dean Mutu1t's swam testimony together withe-
mails challenging the truthfulness of that testimony written by R. Niis Olsen, who was dean of the law
school for the better part of the past decade, and Markus 0. Dubber, who Is currently a professor of Jaw
at the University of Toronto. I also provided you with the_ names of several other faculty members who
have personal knowledge of the facts behind my allegation of perjury, indudlng former Vk:eOeans
Susan v. Mangold and Dianne Avery, SUNY Distinguished Professor Guyora Binder, iJl1d Professor
Shubha GhQsh, who Is currently a professor of law at the University of Wisconsin. I have only askllld, in
an entirely respectful manner, that you investigate the situation and respond.appropriately.
Instead your response has been to threaten me and my NYSUT/UUP attorney with sanctions and court-
ordered restraints. I believe that this Is a serious breach of legal ethics by the AAG who Is proceeding on
the unlversftv's behalf. Not only did I do nothing wrong by contacting you,1 but when a state official or
1My attorney did not counsel me to write to you or anyone else atthe university, but even lfshe did,
the~ Is no ethfca! rule that prohibits such contact. To the contrary, the New York Rules of Professional
Responsibility provide that an anorney may cause a dlent to communicate with a represented party and
counsel the client accordingly, es long as the attorney notifies her counterpart ln advanee. ,See New
Vori: Rules of-Professional Responsibility, Rule 4.2(b).
0000360
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~~-.
Case 1:12-cv-00236-MAT-HKS Document 70-4 .Filed 04/14/15 Page 15 of 62
a licensed attorney r::ornmits perjury in state court, the OAG has an. affirmative duty to investigate and, If
necessary, to prosecute the crime, not to Intimidate the person reporting it In addition; "[a) lawyer
who represents a client before a tribunal and kl'IOWS that a person Intends to engage, is engaging, or has
engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial
measures, including, If necessary, disclGsure to the tribunal." See Rule 3.3(b). Finally, if, by reason of
his exposure to criminal l!ablltty, ~n Mutua's interests in this lltfsatlon have become adverse to the
Interests of the organization the OAG represents-the State University of New York at Buffalo - it is
necessary for the .OAG to resolve the conflict' In the orsanlzatlon's best Interests. see Rule 1.13 (a).2
As for your culpability, the recent events at Penn State should be a salutary reminder that even a
university president is not above the law. I think It should be more than obvious by now that Vice
Provost Flnley has been abusing her position in the provost's office to settle a personal score In the !aw
school and that her advice regarding Dean Mutua's perjured testimony Is, to say the least,
untrustworthy. Ihope you understand why l feel I must do everything I can to see that Makau w.
Mutua and Lucinda M. Finley are held accountable for their dishonesty and mallclous misconduct, both
within the university and before the bench and bar.
Jeffr Malkan
12 lleywood Ct. W
SatntJames, NY 11780
cc: Attorney General Eric Schneiderman
Provost Charles F. Zukoski
Vice-Provost Lucinda M. Finley
Dean Makau W. Mutua
Professor R. Nils Olsen
Professor Susan V. Mangold
Professor Dianne Avery
Professor Guyora Binder
Professor Markus D. Dubber
Professor Shubha Ghosh
2"ff a lawyer for an organization knows that an officer, employee or other person associated with the
organization is e0gaged in action, or Intends to act, or refuses to act in a matter related to the
representatlon that (i) Is a vlolatlon of the legal obligation of the organization.or a violation of law that
might reasonably be Imputed to the organilatlon, and (ll) Is !lkelyto result rn substantial injury to the
organization, then the lawyer shall proceed as reasonably necessary In the best interests of the
organization."
OOOOJo(
Docurnent 487
00003bo
UNITED STATES DISTRICT COURT

JEFFREY MALKIN,
Plaintiff, STIPULATION
12-CV-0236(A)
MAKAU W. MU1UA and
. CHARLES P. EWING,
Defendants.
: . . - . . .
rT IS HERESY STIPULATED AND AGREED, by and among the undersigned attorneys
for all pfil-ties hereto, that Defendants shall be peimitted to amend their Answer pursuant to
Fed.R.Civ.P.15{a)(2) on or before December 24, 2012.
IT .IS FURTIIER STIPULATED AND AGREED that this stipulation may be signed in
counterparts and 1hat a facsimile copy of this stipulation shall b'e deemed as effective and binding
as an original.
Dated: Carle Place, New York Dat.ed: Buffalo, New York

November 2:82012, November _ _, 2012
LEEDS BROWN LAW, P.C .. ERIC T. SCHNEIDERMAN

rPl . Attomey General of the State of New York
Attorney for Defendant
By:
RICK S DAVID J. SLEIGlIT

One Oid Conntry Road, Ste. 347 Assistant Attorney General, of Counsel
Carle Place, New York 11514 Main Place Tower, Suite 300A
(516) 873-9550 350 Main Street
Buffalo, NY 14202
(716) 852-6274
david.sleight@.ag.nv,aov
000036.:1
LEEDS BROWNLAW, P.. C.

One Old Country Road, Ste. 347
Carle Place, NY H 514
(516) 873-9550
Attorneys
November 20, 2012
ViKEmail & First Class Mail .
David Slei@lt
Buffalo Regional Office
Main Place Tower, Suite 300A
Buffalo, New York 14202-3750
&, Malkan v. Mutua et. ql., 12-CV-0236A(SR)
Dear Mr. Slight,
We write to address two issues: (1) the impropriety of your pleading; and (2) a potential
conflict of interest. ,
L Refieiency i>f Answer
We write to .provide you with the opportunity to correct deficiencies in your Answer to
avoid the potential for Rule 11 sanctions. Rule 11 requires:
lA]n attorney ... certifies that to the best offue person's knowledge, information,
and belief, formed after an inquiry reasonable under the circumstances: (4) the
denials of factual contentions ate warranted on the evidence or, if specifically so
identified, are reasonably based 0n belief or a lack of information.
In the attached appendix, we have identified the paragraphs of the Answer which we believe are
in violation of Rule 11. We also note in con..nectfon to your Answer that you decided to submit
one answer au three defendants. As :noted in our appendix, it was improper to deny
allegations or deny information or beliefro allegatiot1s i..11 '\)1hich one defenda,,11t clearly r...ad
knowledge or belief even if the other defendants do not. We hope that you Will choose to file an
Amended Ar1swerWithin the 21 day safe harbor period. If you intend to amend and need more
we would gladly accommodate you.
1 of4
00003/iJ

f
2. Conflict of Interest
II
Additionally, we believe that your representati.911 of multiple defendants creates a conflict
of interest. See N.Y. RULES OFPROF'LCONDUCT 1.7(a). Your office was clearly representing the
interests of the State in moving to dismiss claims on the basis of Eleventh Amendment sovereign
immur.ity. By ensuring that compensat.ory and punitive 'damages were not being pursued against
l
the State, yo:ur office took a position that was adverse to your individual defendan:ts. At the least,
their consent w~ necessary before your office could do this. See id 1.7(b)
Additio~y, now that punitive damages are being pUrsued against both Mutua and
Ewing, it is poSSJ.'ble that one individual defendant may have to testify to facts that will conflict
or be adverse to the other individual def~ndant. For example, Defendant Ewing ntay have to
I!
testify regarding facts that demonstrate that Defendant Mutua had an evil motive or deliberate I
indifference to the rights of Plaintiff (or vice versa).
l
Furthermore~ if punitive datllages are found against either individual defendant,. this may
absolve the State from its responsibility to indemnify the ~vidual defendants. See Public
Officer Law 17(3)(a). Thus. the individual defendants have a conflict not only between
themselves but between themselves and the State. Given this conflict, I requem that your office
provid,e us with evidence.that defendants have consenteci.t.o this co'nflict See In re Taylor, 567
F .4d 1i 83, 1191 (2d Cir. 1_977) ("When a potential or actual conflict of interest situation arises,. it
is the court's duty to ensure that the attorneys client, so involved> is fully aware of the nature of
the conflict and understands the potential threat t.o the protection of his interes1s.").
Thank you for your attention to these matters,
Page2of4
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f
Case 1:12-cv-00236-MAT-HKS Document 70-4. Filed 04/14/15 Page 4 of 62
APPENDIX
D~niaJs
DEFICIENcms IN ANSWER
l
Paragraph 23: Denies the allegation in its entirety but it is within Defendants knowledge
that at least some or all of the allegations are true, including that the CCPR committee
was not yet convened and that the faculty was not notified,
Paragraph 25.: Denies the allegation in its entirety but it is within Defendants knowledge
that at least some of th.e anegations are true. See Bx, 1.
Paragraph 26~ Denies the allegation in its entirety but it is within Defeildants knowledge
that at least some or all of the allegations are true. See Ex. 1.
Paragraph 26: Den,ies the allegation in its entirety but it is within Defendants knowledge
that at least some or all of the allegations are true; See Bx.2
Paragraph 29: Denies the allegation in its entirety but it is within Defendants knowledge
that i1 was announced to the faculty that Ewing was appointed Vice-Dean of Legal Skills;
See Ex. .3.
Denials on the Byjs of Lack; of Knqwledge or Information
Paragraph 7: Denies knowledge or infunnation sufficient to form a belief as to the truth

or falsity of the allegation but it is within Defendants' knowledge whether Malkan was
appointed as Director of Legal Reiearch and Writing and method of his appointment
Paragraph 11 : Denies knowledge or information sufficient to form a belief as to the truth

or falsity of the allegation but it is within Defendants' knowledge whether Ma1kan was
recommended to full Clinical Profe$S9! especially considering that Mutua testified
previously to this very issue. See Ex. 4.
Paragraph 12: Denies knowledge or infurmation sufficient to form a belief as to the truth
or falsity of the allegation but it is Within Defendants' knowledge that Malkan was
"promoted to the status of full Clinical Professor. See Ex. 5.
Paragraph 16: Denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegation but it is within Defendants' knowledge when the former Dean
resigned and Mutua was appointed interim dean. See Ex. 6.
Page 3of4
0000372
.case 1:12-cv-00236-MAT-HKS Document 70-4 Filed 04/14/15 Page 5 of 62 i
Paragraph 17: penies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegation but it is within Defenctants' knowledge when Mutua
announced to the faculty that he had dismissed Malkan as Director of the Legal Research
I
and Writing Program. See Ex. 7. I
I Paragraph 18: Denies knowledge ot information sufficient to form a belief as to the truth
or falsity of the allegation but it is within Defendants' knowledge whether Malkan
t
I
I continued to teach a full schedUle of courses.
!
Paragraph 19: Denies knowledge or information sufficient to form a beliefas to the truth t
or falsity of the allegation but it is within DefendantS' knowle)ige when Mutua was i
appointed Dean.' See Ex. 6.
Paragraph 21: Denies knowledge or information sufficient to fonn a belief as to the truth
or falsity .of 1he allegation but it is within Defendants' knowledge when Mutua wrote and
had the ietter delivered. See Ex. 8.
Paragraph 24: Denies knowledge or information sufficient to fol.lll a belief as to the truth
or falsity of the allegation but it is within Defendant.s' knowledge when Malkan filed a
protest with the Grievance Committee. I
Paragraph 27: Denies knowledge or infonnation sufficient to form a belief as to the truth
I t
or falsity of the alleg--..ti-On but it is within Defendants' knowledge vvilethet M.utua
convened the CCPR on that day. See Ex. 2, 9. t
Page4 of4.
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........
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0000373 I
Documents, 2006-2014
l. Malkan contract with ABA Standard 405(c), Oct. 19, 2006 ............................. 375
2. Policy on LRW faculty reappointments, Dec. 9. 2009 ................................... 382
3. Mutua notice of nonrenewal, Aug. 28, 2008 ............................................... 383
4. Malkan offer Jetter, July 25, 2000 ............................................................ 384
5. Malkan Deposition (excerpt), Dec. 18, 2013 ............................................... 387
6. Malkan interview schedule, June 25, 2000 .................................................. 398
7. Declaration of President Satish K. Tripathi, Dec. 12, 2013 .............................. .399
8. ABA Self-Study, Jan. 2009, and Findings of Fact, Jan. 2010 (excerpts) .............. .405
9. Mutua Statement of Undisputed Facts (Local Rule 56.1), June 7, 2014 ................ 411
10. Faculty Bylaws, Clinical Faculty Appointment Policy, Mar. 20, 2009 ............... .414
Case 17-38, Document 22, 02/01/2017, 1961823, Page371of487
~ Case 1:12-cv-00236-MAT-HKS Document 70-4 Filed 04/14/15 Page 35 of 62
UnhrarllitJ at Bllffalo I.aw Sdlflol

The State. University ufNew Turk
I
l October 19, 2006
Jeffrey Ma.lkan
IOOL Autumn Creek Lane
East Amherst, NY 14051
Dear Jeff:
I am writing to congratulate you on your iromotion'to Clinical Professor. This

promotion is in recognition of your significant and cffeptive 8ervice to the school. This
letter.is intended to incorporate our many con\'1:ll'Sations and to document our agreements
and will define yow- contract with the law school It will be placed in yo1ll' personnel file
here to guide future Deans as they approach your term reappointments.
As we have discussed throughout your service to UB Law Sehool, your

appointment is covered by the ABA rules and is intended to fully comply with thtise
rules, particularly standard 405(c) and all a.coompanying inuupretations. especially
interpretations 405--6 and 405-8. Now that you have suocessfully been appo41ted
following a full review> future reviews w.ill have the "for cause only" rem.oval standard
set forth mthe ABA Standards. Under ABA policies, this standard means you may only
be denied reappointment for cause such as dishonesty. failure to report to work or some
other equally egregious action. The "for good cause" standard is meant to be similar to
that term as applied when dealing with tenured faculty and is intended to ensure academic
freedom.
. This ia a S-year contract. intended to comply with the relevant ABA aocteditation
standards. Because current SUNY policies only provide for 3-year contract t.erms, the
Dean will provide a 2year adminisirative extension at the end of every 3.:.ycar period.
The Dean for the purpose of maintaining compliance with the mandate of the law .
school's accrediting agency will dq lf1l sooh 2.year eJttefiSiofls toWtie!Y; If SUNY allows
the law school to grant S"yeer ,contracts in order to comply more directly with the ABA,
the automatic 2-year extensions' will be discontinued and all contract renewals will be for
s"years. The 5-year contract renewals will alternate betWeen the Dean and the Faculty's
Promotion & Tenure Committee, tmless the Faculty, in the course of updating its
personnel p:roced~ for clinical professors, deo,l.cies to cede its role to the Dean. in which
case the Dean will do all 5"year renewals.
Your CUJ:tent contract tertn as CliniCal Professor extends from. 9/1/2006-

8131/2009, flJ).d your current salary rate is $95,000. At the expiration of this term, the
Dean will ex.tend your contract for 2-years. or from 9/1/2009..8/31/2011~ to provide the 5-
year contract term mandated by the ASA. The Dean will perfoi:m the first 5-year renewal
319 Jahn Lord O'llrlan Halt lhlffak>, NY tOS0.1100

Tel: (1tlit645-20S2 Fic(71') fi45.$968 E-m.llil: law.de;"llObui'fal....du We!Xwww.law.hdffak>.edu
00003'15
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16262
contract in 2011-2-012, !TJilowed b~ll' a secon<l :5-ye.ar renewal, performed by the

Faculty's Promotion & Tenure (-Omnnttee in 2016-2017. All imbsequent 5-yearrenewals
at the expiration of ear.h term will alter!'.ate mthis format betWeen. the Dean and the
Faculty. The renewals will incorporate an the tenrui of the preceding contracts and this
letter unlessboth parties agree to new terms. revle"m> and renewals will comply with
the ABA's accreditation stan<lards, p~cularly stalldatd and all llCCOmpMying
interpretation:s, as well as with the implementation of those requirements set forth in this
letter. A copy of SUmdard 405(c) is attached to this letter fo: reference.
I run additionally renewing yonr itppoiutmeni as Director of

. RtJseareh !llld Writing. l want to srn:i~ely thi:;nk you for your wotk as D.irector and look
forward to your continued leadership of the ptogrL".nL. This is a decm:ml administrative
appointment aud is m:it part cf the faculty review prooo..~i:l, The Dean will r~new this
appointment in 5-year increment.sunless there is good cause for am earlier review or as a
result of mutucl agr1;..'e!:nent
A cha.tlge in struc1llte or staffL'1g oft.he law school's resee:roh and "Writing progran1
wiH not equate: with ''for good cause" to terminate or oot renew your controot since your
com.net as Clinical Professor is separate from your adn:iinistrative appointment as
Director of Research and Writing, Should your. appointment as Director of Research and
Writing end, you would ~till maintain your. position as Clinical Professor. In that
capacity, withoL>t the ~f:iliative .workload as Dlreotor .of P~ch and Wrlfir...g. you
would be expected to tetach two couri$es each semester as per the normal teaching load of
aH faculty, Those courses oould b(;; writh1g wttrlles, IP ootttses or whmever teacl:rlng load
you m_utually agree upon wiili the Dem and Vice Dean for Academic Affairs at the time.
To accept this apJ,')oln!ment, please sign a copy cf this letter a:nd return it to me as
soca as possible. Pfoase give me a call tf you have filly. questions, or would like to
discu:;s anything about fuis offer.
Denn and Profeggor of Law
000037b
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oooo3n I
Case 1:12-cv-00236-MAT-HKS Document 7<J-4 Filed 04/14/15 Page 38 of 62
2005-2006
Bar Associa,tlon
Sectlori of legal Education and Admiss:W 'Ile
00003'1 u
Efforts to ensure teaching effectiveness may Include: a faculty committee on effective

teaching, class visitations, crtttques ofvideotaped teaching, institutional review of
student evaluation ofteaching, colloquia on effective teachtng, and rec.ognitton of
creative scholarship in law school teaching methodology. A. law school shall provide all
new faculty members wtth orientation, guidance, mentoring, and periodic evaluation.
Standard 404. RESPONSIBILITIES OF FULL-TIMR FACULTY
(a) A law school shall establish pcilicles with respect to a fu.ll..time faculty member's
responsibilities in teaching, scholarship, service to the law sdlool community, and
professional activities outside. the law school. The policies need not seek uniformity
among faculty members, but should address:
(1) Faculty teaching responsibllitles, tDcluding carrying a fair share of the

law scheol'11 course offering~ preparing for cluses, bfing available for
student consultation, pa:rttc.lpatlng In academic ad\'ising, and ereatlng an
atmosphere in which students and faculty may voice opinions and exchange
ideas;
(2) Re11eareh and rreh1>lanhip, and integrity in the conduct of scholarship,

indnding appropriate use of student research asslatanflt acknowledgment of
the contributions of others, and responsibility of faculty members t.o keep
abreast of developments in their 1pedal11es;
(3) Obligations to the Jaw school and nnlveralty eooununlty, including

participation in the governance er the law school;
(4) ObligatioDB to the professlon, lu.cluding working wlth the practicing bar
ud Judiciary to improve the profession; and
(S)Obligatlons to the publle, Jncl11dlng-particlpation in pro bono activities.
(b)A law school shall evaluate periodle~ly the eXtent to which each faculty member
discharges her or his responsibilities under pollcles adopted pursuant to Standard
404(a).
Standard 405. PROFESSIONAL ENVIRONMENT
(a) A law school shall establlsh and maintain conditions adequate to attract and
i-etaln a competent faculty.
(b)A law school shall have an established and announced policy with respect to
academic freedom and tenure of which Appendix 1 he.rein it an example but is not
obligatory.
2007-2008 ABA Sltmderda f'ot Applovlll of Law Schoola 33
i
...... 1 ...
00003ia
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Document 487
(c) A law sdtoof shall afford to full~time clinkltl faculty mentbers a fnrm of security
of position reasonably similar tn tenure, and non-compensatory perquisites
reasonably similar ro those provided other fulJ..tlme faculty members. A law school
may require these faculty members to meet standards and obligations re~sonably
similar to those .required of other foll-time faculty members. However, this
Standard do~ Mt preclude a limited number of fb:ed, short-tenn appointments in a
clinical program predom.lnantl.y staffed by full-time faculty members, or in an
experimental program of limited duration.
(d) A law school shall afford legal. writing teachers such security ofpoidtion and
other rlght!I and privileges of faculty membership as may be neceuary t0 (1) attract
and retain a faculty that is wen quallfled to provide legal writing instruction as
required by Standnd 362(11.:)(3). and (2) snfeguard aeademi-0 freedom.
Interpretation 405-1
A frxed limit on the percent ofa law faculty that may hold tenure under any
circumstances violates the Standards.
Interpretation. 405-2
A law faculty as professionals should not be required to be a part of the general
university bargaining unit
Inurpretation 405-3
A law school shall have a comprehensive ~stem for evaluating candidates for promotion
and tenure or other forms ofsecurity ofposition, including written criteria and
procedures that are made available to the /acuity.
Interpretation #JS-4
A law school not a part ofa university mconsidering and deciding on appointment,
termination, promotion, and tenure offaculty members should have procedures that
contain the same principles offairness and due process that should be employed by a law
school that is part ofa university. Jf the dean and faculty have made a recommendation
that is unfavorable to a candidate, the candidate should be given an opportunity to
appeal to the president, chairman, or ~oveming board.
lnterpretaikm 405~5
If the dean and faculty have determined the question ofresponsibilityJot examination
schedules and the schedule has been announced by the authority responsible for it, it is
not a violation ofacademic freedom for a member of the lW fiu:ulty to be required to
adhere to the schedule.
Interpretation 4056
of security ofpolfition reasonably similar to tenure includes a separate tenure
track or a program ofrenewable long-term contracts. Under- a separate tenure track, a
fall-time clinical faculty after a probationary period reasonably similar to that
for other fulltime faculty, may be granted tenure. After tenure is granted, the fa1..'Ulty
34
oooo:Ju,;
member may be terminated only for g<Jad cause, tncludlng terminatio11 or material
modificaiion ofthe entif'e clinical prowam.
A program of renewable long-term contracts shall provide that, 1.ffier aprobaticnary

perwd reasonably similar to that for other fall-time faculty, during whtch the clinical
faculty member may be employed on short-tftrm oontract.J, the services ofa faculty
member tn a clinical program may be either terminated or continued by tbs granting ofa
long-term renewable contract. For the purposes ofthis Interpretation, "long-term
contract" means at least a five-year contract that is presumptively renewabk or other
arrangement $Ufftcient tv ensure academic freedom. During the initial long-term contract
or any renewal period, the contract may be terminatedfor good cauae, including
termination or material modification ofthe entire clinical program.
Inrerpretation 40SH 7 .
In determining if the members ofthe fall-tttne cltnical faculty meet nandardll and
obligations reasonably simi1ar to those providedfor otherfall~time faculty, competence
in the areas of teaching and scholarly research and writing shoul.d beJudged in terms of
thlt responsibilities ofcltntcalfaculty. A law school should develop criteria for
retention. prDm(Jtion, and see:urity ofemployment offall-time clinicalfaculty.
Interpretation 405./J
A. law school shall qfford to fulJ-time clinicalfaculty members participaJion in faculty
meetings, committees, and other aspects oflaw school governance in a m4nner
reasonably similar to other full-time faculty members. This Interpretation does not apply
to those persons referred to in the last sentence ofStantlard 405(c).
InrerpretaiWn 4059
Subsection (d) ofthis Standard does notpreclude the use ofshort-term cowtr(JJJtsfor legal
writing teachers, nor.does tt preclude law schools from qfferl.ngfellowship programs
designed to produce candidates for full-time teaching by offering individuals supervised
teaching experience.
2007200& ABA Standards for Api.woval ofl.t!w Sekooll 35
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Case 1:12-cv-00236-MAT-HKS Document 63-6 Filed 08/30/14 Page 33 of Tl
UNIVERSITY AT BUFFAI.0 LAW SCHOOL
POLICY ON APPOINTMENT AND RETENTION OF
LEGAL RESEARCH AND wmTING FACULT\'
Approved by tirefacultyl2/10/2()()9
Subject to the Polieies of the Trustees of the State University ofNew Yod: (SUNY) and of the
University at Buffalo, the Law Faculty adopts the fullow:ing policy for appointment and retention of
members of the Legal Research md Writing (R&W) fuculty,
L Genem. Instrucm of Researcll and Writing siu!ll be appointed ro the position ofLocturer. On
the terms provided below, the appointment shall be to indefinitely renewable long-term oontracts.
2. lnl.iiu Appobument Searches for R&W faeu1ty shalt be initiated by the Dean, in consultation
with the Vice Dean for Legal Skills. The Deim may appoint a committee of one or more Faculty
Members, as defined mFaculty Bylaws, Section IIl(A}, including the Vice Dean for Legal Skills,
to conduct: the search. The Dean shall make tire inmal appointment after securing the advice of
the Academic Policy !llld Program Committee (APPC). The APPC may delegate this function t.o
a subcommittee. The initial term of appointment shall be two~-
3. First Reappointmem. Before the md of the second ye!lr of the initial appointment, the Vice
Dean for Legal Skills shall present to the Dean a recommendation on reappointment. If the
position of Vice Dean for Legal Skills is vaoant, the recommendation on reappointment shall be
prepared by the Vioo Dean for Academic Affilirs. If that position is vacant, the recommendation
shall be prepared by a Faculty Member appointed by the Dean.
The stllndard fur a favorable recommendation shall be that the candidate, upon evidence before
the Vice Dean, has demonstrated the ability and promise that led to bis or her initial appointment,
md shall be based primarily on the quality afteachlng. The Dean shall ronsider the Vilie Dean's
roc,ommendation, lllld tlre materials on wliich it is based, in de1emrining whether to make the
reappointment In his or her discretion, the Dean may refer the reooxnme:ndaticm and ooy
supporting doouments to the APPC t-0 obtain additional advice. It Is expected that if a candidate
bas demonstrated good teaching ability and effective implementation of the R.&W Program
objectives, the initial appoint111ent shall be re.newed, absent unUBUal ei~e,~.
The ta:m of the first reappointment shlill be three yearn. SUNY policy currently limits term
COntr"dC!'S to a maximum Of three years. Should umve:rsity policy change ltl allow for contriu:ts of
longer tenns, the Iat"Ulty shall consider ell.tending R&W contracts ro terms of five years.
4. S111lm~trem Re~plli'lltlminu. ReappointmJ'JJt to ll'.1bseqoont three~year contracts shall. proooed

in the same maooer as the first reappoinlment It is eitpccted that if a cmididate has de1nonstrated
good teaching ability and effective of tlw R&W Program objectives, absent
unusual circwustances, the app<Jintment will be .renewed for rui additionlil three~year term.
MUTUA000354
0000382::
case 1:12-cv-00236-MAT-HKS Document 63-2 Filed 08/30/14 Page 67 of 81
1
lhlllfusl(Jatllaff..Otawlc:ll..a
'fheStaM IJnfretsitytJf New York
August 28, 2008
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Jeff!'E!y Malkan

1COL Autumn Creek Lane
East Amherst, NY 14051
Dear.Jeff:
In accordance With the Pollciea of the Soard of Trustees, I regret to Inform you that your
three-year term appointment Bl Clinical Professor ending on August 31, 2009 In the Law School
.wlll not be renewed. As such, your last day of work Will be May 15, 2oo9. This official notice of
non-renewal can be modified only by explicit withdrawal of It and concurrent notice of further
appointment at this University by the President of the Univeralty.
As you know, the Law School has terminated the Research and Writing Program such
as It was and under which you were hired as Director and Clinical Professor and is replaclng it
with the Skills Program lo be headed by a tenured faculty member. .The position of Director of
Research and Writing does not now exist As a resutt of the9e clvmgea, ! have given non
renewal notices to a!! the if'.stru.ctors In the def\Jnct program. But I have indicated to them that
they INOUld be considered for instructional positjons in the new Skills Program, if they apply for
them. To be consistent, I am is,suing this non-renewal notice to you since you have been an
instructor in the defunct Research and Writing Program. Like them, you too will bt:t welcome to
apply for an instructional position under the SkUls Program.
I have carefully reviewed the October 19, 2006 letter of appointment Issued to vou by
former Dean Nils R. Olsen, The letter states that It was written to c:Omport With ASA rules, and
notes that you could only be terminated as Cfinical Professor "for cause only" or "for good
cause." The official Interpretation of ASA.Rule 405 states that a clinical professor "may be
terminated only for good cause, including termination or material modification of the entire
c~nical program. The termination of the Research and Writing Program and its replacement by
the Skills Program. meet the requirements of this i'ule..
In addition, I note that Dean Olsen described your appointment as a "five.year contract."
Sooh a tlye;.year appointment Is not permitted under SUNY Board of Truatees Policies.
On behalf of the Law School, I wish to express my appreciation for your efforts. Thank
you for your cooperation and wilfmgness to wort< to advance the lnterasts of our sctiool and to
respond to the needs Of our students.
Sinctf.,
.! 4f-t-it~t;:-
Makau . Mutua, Dean
SUNY Distinguished Professor
J1g 1.Jhn l.utd 0'61ioll'I H~n. fttalldln, NY MM6"1 ltl0

lol: IJ lo) ~4'>-ZllSJ. fx: <116) oWi'i'l\18 En;,il ~w.H.lt'ls!llli<dlllli>.W w.it.: 'M....,.law.hlJffolo.mlu JM001901
0000383
17-38, Document 22, 02/01/2017, 1961823, Page380 of 487
University af: Blffalo

State Unhcrsity iif New York
.
.s~~ ~~t11w ...
Office of the Dean
July 25, 2000
Jeffrey Malkan
45 Shore Road
1 East Setauke~ New York 11733
Dear Jeff:
This lett6r will confirm ()Qt re~t telephone conversation conceining our offer to you of
a fttculty appointment ~t the Uniwrsity at Buffalo ~~w School cotl'lIXlencin~ with thf: 2000-2001
academic year. First of all, though. let me reemphasize that our faCulty is very e.O.Thi.isiastic at the_
prospect of your coming to Buffalo.
As we discussed, yqur initial salary will be $6~000. with scheduled raises of at least
three per cent for the second and third year of y0ur employment. In addition. you will receive
the generous New York State benefits package, which includes retirement contn'butions and
health and dental insurance plans. We will al.so provide $3,000 for summer support and assist in
paying your moving expenses at the outset of your. appointment.
Your initial appointment will be as l!tll Clinical Associate Professor and Director of
Research and Writing for a three-year tenri,. with reappointment for a second three-'year during
Your second year. Jn your fifth yea:r, the faculty will make reappointment for a third three-year
tenn. This process oft!:lre~year te:nn ten~"Wa!s then continn...es indefinitely.
Teaching responsibilities at dte outset call fur your participation in our Research and
Writing pI'Qgi:~ with two sections each semer. it is anticipated that. in fu.ture years., ycu.r
teaching responsibilities in RE$eatCh and Writing will be -reduced to one class per semester, and
that yOtt could broacten iour teaching to include other courses or s@1i:nars in !>Ubstantive areas of
interest to you. -
to accept this appointment. please sign1 a copy of this letter and return irto me as soon as
possible. Please give me a call if you have any questions, or would like to discuss anything
about this offer or the Law School.
V~yo~,.,
I f/lJ. u; :"/ ..
K. Nil$ Olsen, r. '
Dean and Professor of Law
I accept the foregciins appointment.

II t -"'l ;J..<100
~ 'r
date
Jahn l.Ord O'Briari Had Rm. J19, !ox 601100, Buffalo. NY 14260-1100
Tai: !716) 6'115-1052 ~ax: {716) 645-5968
0000384
I STA'rE UN!:VSRSITY O'F NEW YOJll( At BlIF~ALO

l'rtl1f.AN ~~OURC&S .
f
~i{otN:t~f riA'.i'A. smx
AT'.FACHHENT t.o :PHSiDEN'l' I $ A,PpQ:Pl'.rMENT LET.Tl:Jl
I MR. iEFfR~'(
LAW s'CHQOL
HAJ'..lW.i
7Z~ o BRI:l\N HALL
TITLE/RANK: Ciii'i, Pt"of 10
TERM
ANNUAL SALA.RY: $9.5' 890 .Q()
EFFEcTIVE DATE; Sep.tinQet: 6, .2007
Au~st :u,~ 2009

\
l 'fiiis -h.P.poiitbi1ent b 111ade in ~u~ci>r~~-- -wi.th. the poHci'e of
tll,e l3.oa.s;;4 of: trusbaefl;- i?~ci:fi:<:aliy Jll-ldcUe ~I. and the rule~
:I arid regulation wh-f~. gqVjrji ji:icti Appoin;iililenh in the :Stl!t
l:Jniver.si ty of N'ew l,btk. '
1
I
)Co la,1re eligible tor health .l~11~~c. :pt:eifor111tfon eovera~e
i:, ;!.rid ret-in111en'tb~er:ft:a, ~\{; yq. Jii!ive n'ti't be.en contachcl lly
B~n.e.fHs Adntin.{stta:t;~Ci~ o:I;" 'lliiiiiiihl l\es:ourc.e11., pl.eaae ca.Ii
645,...15'1}00'~ <ilxt.. 11~9 or. t~lO ~ii.t: fi;tr:tl:ter detail1s..
Lr!AVE A:UA;LS I;!I.G!BILJ:iY:
Yi:lti are eli_g.ibl>e 'for Slck L~_~ve- Ct'4td{t;:O :Yi:iti. ate req!:li':red to
Cf!lrt.ify your tim lld ~ttlfilf~*"' 'lllthly :with your d'epartment.
;You are not eil'.g.i'\l.h for"Viltli.tit,n, L~ave cudfts ac<:ori#ir1 to.
Article 2~ o.f' ~Ill!: .!\g;,e~eO.t, J,iettteen. tli:e state oi .New .Yot~ ~n:d
united Un,iV.QrdJ!y Pi-o.hi.i.s.ions, 2003-2-007.
if you wish to acde);)t the. Appo.intment, piea.l!e sign a#il da~e

th'e. endor"Semenl! befaw and r.~turn on' copy t:Q S.hat-on H'olciswort}l,
University at Bufl'11t9, HlrJ,..,. l!.es'o.t.u;'e~- :tip Crofts Hall,
Buffalo; New York 14:l60.
DATE; SIONA1UR$
Case 17-38, Document 22, 02/Qll2QlI,_J9~1823, P(ige382of487.
Case 1:12-cv-00236-RJA-HKS Document 82 Filed 07/22115 Page 1of38
"UNITED STATES DISTRICT COURT

JEFFREY MALKAN,
Plaintiff, PLAINTIFF'S DECLARATION

-against IN SUPPORT OF MOTION
FOR.RULE lll SANCTIONS
MAKAU W. MUTIJA. in his individual
capacity,
Docket No: 12..CV-0236 (RJA-HKS)
Defendant .
JEFFREY MALKAN. pursuantto 28 U.S.C. 1746, and tinder penalty ofperjucy,
declares and states:
I am the plaintiff in this action, and I make the following declaration to support my motion
for Rule 11 sanctions against former-Dean Makau W. MQl;ua and his counsel, David J. Sleight,
Esq. I will first address former-Dean Mutua's s~ctionab!e conduct, then Mr. Sleight's.
Maka1l Mutuas perjury

1. Mr. Sleight is incon:ect when he says that what happened in the meeting of the
Promotion and Tenure Committee (P&T) on the afternoon of April 28, 2006 is an unfuthomable
mystery locked into the minds of those who were inside the room and forever inaccessible to
evetyone who was on the other side ofthe door that day. A law school faculty is a merit-based
collegial body and the selection of its l'.)Wll members is the most important :function of its self-
governance. That is the basic principle of academic integrity in higher education.
2. The judicial process is based on the understanding that there are undisputed facts that
are accessible to the common knowledge of responSibfo and mentally competent human beings.
That includes lawyers and law professors. Everyone on the Law School faculty has actual
-{~;--
000038fJ
Case 1:12-cv-00236-RJA-HKS Document 82 Filed 07/22/15 Page 2 of 38
were not in the room,
and so does Mr,
the Promotion and Tenure Committee meeting
3, is not the slightest doubt about what was voted upon and uv1.u<0u. in this
u.,.,,.,,,,'"' of a committee of the whole of the Law School's tenured law school or<1tes.smiL A
disagreement," in Mr. Sleight's choice of words, betwee11 the dean and the entire faculty
about the outcome of a P&T Committee vote cannot occur unless the dean is lying, which is a
of the institution,. or the entire faculty in collusion is lying, which is impossible. When
Mr. Sleight, after handling this case for over three years, says otherwise, he too is lying, which is
a. betrayal of the legal profession by the Office of the Attorney General.
4. I was not in the room because I was the subject ofthe meeting, but I was waiting in
my office upstairs and, as soon as the meeting adjourned, I began hearing the <let.ails of what had
program at the Law School, immediately stopped by my office to congratulate me on my
I went do"Vvn to the administrative offices on the third floor of John Lord O'Brian
Hall to see then-Vice Dean Sue Mangold. l had to wait because was on the phone with
fomier~Dean Nils Olsen, who was at home in Madison, Wisconsin tending to a sick but I
overheard her report of the me.eting to him. What I heard them discuss is exactly what she said
in her dei,os1t1on testimony on. November 20,
5. Twohours Shubha (rhosh and I went out to dinner and we talked about the
It was perhaps indiscreet for us to do so, but it was also harmless he related
the same facts that Vk..e-Dean Mangold had told Dean Olsen on the and that
"'""'v"u~uJ heard others Dianne and Guyora Binder. fo
000038"1
- " - - - -....... m . . . . . . . _ __________ , . . . . . . . . . . . . ~ ................. -~----~se, 71'~"~3frr-t7~ent 22- -02/0l/.201-7- l961823j-P-age384 Of 4

1 1.. 0
addition Professor Ghosh told me vvho was present at the meeting. The nineteen members who
attended. just enough for a quorum (I believe there were thirty-seven voting members of the
faculty at that time), were:
Vice-Dean Susan V. Mangold (chair),

Professor James A. Gardner (now Interim Dean),
Professor Shubha Ghosh (now at University of Wisconsin},
Professor Markus D. Dubber (now at University of Toronto),
Professor Eirol Meidinger (now Director of Baldy Center);
Professor Guyora Binder 'now Vice-Dean for Faculty Development),
Professor Rebecca French,
Professor Dianne Avery (now retired);
Professor Fred Konefsky (now retired).
Professor David (Bert) Westbrook,
Professor Robert Steib:feld.
Professor Stephanie Phillips.
Professor Geotge Kahnart
Professor Tony Szczygiel (now retired),
Professor Isabel MarcU$,
Professor Janet Lindgren (now retired),
Professor Barry Boyer (fonner Dean.-now retired),
Professor Betty Mensch (now retired),
Professor Makau W. Mutua: (now fonner Dean).
6. I knew going in1o that meeting that oowInterlm Dean James A. Garoner and former-
Vice Provost Lucinda M. Finley bad been lobbyi~, under cover of faculty confidentiality, to
oppose my promotion, Vice~Provost Fmley's involvement was unlawful because she was a
member of the central administration and forbidden by ABA rules to intrude into faculty
governance in any way. That is why; (}espite her attempt to leverage her influence to exert
~.
0000388
Document 487
71. Fonner-Dean Mutua's dishonesty should be as shocking to Mr. as it has been
to me. I should not to resort to Rule 11 to keep Mr. Sleight from signing off on these lies in
foderaI comt. Rule 11 only comes into effect when an attorney refuses to what an attorney
not to be reminded to do. Unfortunately, that is what is happening
72. The matter of former-Dean Mutua's perjury was on Mr. Sleight's desk from the very
""'"''"'~" of th.is case, that is, from the allegations of the complaint that commenced this lawsuit
mac>JJ,,w, 11 of the complaint alleged that the P&T Committee, on April 28, 2006, voted on
reappointment and promotion and passed a recommendation in my favor. Mr. Sleight answered
denying knowledge or information sufficieht to form a belief as to the truth or falsity of the
allegation. My counsel at the time, Bryan Arbeit, Esq. informed Mr. Sleight by letter that this
answer was inadequate because his client had already testified under oath at PERB that the P&T
term inatiou. Mr. Skight responded by cha..'1ging the "DKI" in his answer to a flat This
amrwer was signed by Mr. Sleight under Rule 11 and embedded the perjury in this case, where it
under Sleight's imprimatur, to the present day.
basi.s for former~Dean Mutua's denial of the allegations in paragraph 11 by posing the
as Mr. attemptto flip the University's policy one way for the ABA and
a1:Sino;r1est and unethical. It fails, moreover, to satisfy the
set by Rule 1 l (b)(2) "claims, defenses, and other legal contentions are
warrai1ted existing law or by a nonftivoious i:ifgllment for extending,. modifying, or
law or for new I.aw." It was in "ri,,mr-,,;"'
Esq., SUNY emp1oymentcow::isel, with the assistance of
who was representing 1\fr. Jarvis. (This University has atto111eys ,,,~.,v,, ..~,,.,
.. K.,,_,~"" who are other I am
ass:ert:mll that it
000038J
Case 17-38, Document 2'2;-02/0112017, 1961823, PageSBU of 407

State the names of all faculty members who are ~ompetent to testify and may be
called to coITOborate Dean Makau Mutuas sworn testimony at the March 31-April
l, 2010 hearing of the Public Employment Relations Board(PERB) in Albany
that the Promotion and Tenure(P&T)Committee voted to grant Professor Malkan
a one-year tennhlal contract for his administrative appointment as Director of
LRW, and took no action (i.e., did not vote on any resolution or approve any
recommendation) regarding his application for renewal of bis faculty appointment,
with an indefinitely renewable long-term contract and promotion to the title/rank
of full clinical professor.
74. This question was intended to determine if there could possibly be any truth to
Makau W. Mutua's PERB testimony, or if it was just what it appeared to be, perjury pure and
simple. Mr. Sleight's response speaks for itself:
Defendant obje.cts to this interrogatory on the grounds that it is overly broad,

unduly vague and ambiguous, irrelevant. and not reasonably calculated to lead to
the discovery of admissible evidenbe,
75. Mr. Sleight signed thisdoeumentonJuly 19, 20l3and tQdayis July21, 2015. That
is over two years wasted, with hundre:ds oflegal hours at my personal expense as well as the
State's. It is wasting this Coort's resources and will continue to -do so into the endless future
unless this Court intervenes to stop it
76. Mr. Sleight's signature makes bis miscond:uct subject to Rule 11. At the depositions
that ensued in November and December of that year, I called witnesses whom I knew had
knowledge of Makau W. Mutua's ~:ury and whose honesty I respected. I could not call all
nineteen professors because I could not afford to do so. and it would be an exercise in futility. I
could not uncover any evidence that former-Dean.Muma was telling the truth. When the
evidence became so overwhelming that there was no one left who had anything to add, I had to
stop.
77. Mr. Sleight called rio cme to rebut the sworn testimony of Professors Olsen, M.angold,
Avery, French, and Steinfeld, except his own client, fomter-Dean Mutua, who corroborated his
own lies. No one would corroborate Makau W. Mutua'slies., except Makau W. Mutua himself.
24
00003JU

3 -------------------------------------------------
4 ,JEFFREY MALKAN,
Plaintiff,
61
7 -vs- FILE NO. 12-CV-0236
8 l'A.A.Kl\U W. MUTUA and CHARLES P. EWING, in their
individual capacities,
9
10 Defendants.
11 --------------------------------------------------
12 Examination before tria1 of JEFFREY MAI.KAN, held

13 before Ke11y S. Hairston, Notary Public, at DAMON MOREY,
141 Avant Building, 200 Delaware Avenue, Suite 1200, Buffalo,
15 New York, on Wednesday, December 18th, 2013 at 10:00 a.m ..
16 pursuant to notice.
17 LEEDS BROWN LAW, P.C.,

BY: BRYAN ARBEIT, ESQ.,
18 One Old Country Road, Suite 347,
Carle Place, New York 11514,
19 Ph. (716) 873-9550,
Attorney for the Plaintiff.
20
DAMON & MOREY, P.C.,
21 BY: RANDOLPH C. OPPENHEIMER, ESQ.,
Avant Building,
200 Delaware Avenue, Suite 1200,
Buffalo, New York 14202-2150,
23 Ph. (716) 856-5500,
Attorney for the Defendant,
24 Charles P.
10 Franklin Sti'ei:'it, Suit~" 601, k

716-853- 544
Document 487
,J. MALKAN -- BY MR. SLEIGHT -- 12 /l 8/2013 83
J withdraw that.
2 Initially you wanted a five year contract; is that

.3 right?
4 A. No, that's actual not true.

5 Q.
6 A. I only expected a three year contract and that was the

7 Dean was looking forward to the ABA site visit in 2008
and he was concerned about whether the law school was
in compliance with Standard 405(c). So he was
initiating either going through SUNY Central and having
11 the title of Clinical Professor added to the five

12 year -- there's some appendix to the trustees' policies
13 that have certain job titles that get five year terms
14 instead of three and if he failed on that, then he
SI wanted to try it this way. But he wanted to show the

16 ABA that we were in compliance, so that was his idea.
17 Q. So the idea of this that ultimately ended up in this
18 contract of a three year term contract with a two year

19 administrative extension, automatic ad.Tninistrative
20 extension, that was Nils Olsen's idea?
21 A. Yes.
22 Q. And in the lead up to this contract, you were aware,
23 were you not, that there was a pol of the SONY board
24 of trustees that limited term contracts to three
25 years?
DePAOLO-CROSBY REPORTING SERVICES, INC.

170 Frankl 2
'
716-853~5544
000038
,J. MALKAN -- BY MR. SLEIGHT -- 12/18/2013 84
A. Yes.
Q. And I think -- well, I'll ask you, do you recall Dean
Olsen trying through whatever channels it was, I think
4 you mentioned to add Clinical Professor to contracts
5 that were accepted from that three year sion?

6 A. Yes, I think there were e-mails that either I provided
7 or that you provided that document that and ironically

8 I think Lucinda Finley, the Vice Provost, was the point
9 person dealing with SUNY to try and get that changed
10 through, but never happened as far as I know.
11 Q. Did you have any involvement in those discussions?

12 A. No.
13 Q. We have this e-mail from September in which you're --
14 you're suggesting points that you want in the contract.
151 Other than this time period, was there other time
l r
0 periods where you met with either Nils or Susan to
l7 discuss terms and conditions of this contract?

18 A. I think we -- I remember we met once or maybe twice.
19 We didn't spend a huge amount of time, but each meeting
20 was at least like a half hour. Maybe the first meeting
21 might have been to talk about my problem with Jim
22 Gardner. I think we may have had only one to
23 talk about the contract itself and how to ve some
24 substance to how 405(c) would apply to my r
25 situation because the standards are very general and I
DePAOLO-CROSBY REPORTING SERVICES' INC .

, New Yor
0000393
487
J. MALKAN -- BY MR. SLEISHT -- 12/l8/2013 102
1 to him and explai~ whatever misunders we were

~,
L between us and he rejected that. So then when I
3 was terminated, they continued to represent me in
4 certain legal aspects.
5 Q. You advised them though that you had received this non
6 renewal letter?
7 A. Yes.
8 Q. Who was it over at -- where is the UUP representative,
9 are they located in the law school?
10 A. No. There's one representative who represents the --
it's a branch of NYSUT, New York State United Teachers,
12 and they have an office in Williamsville and the union
13 rep represents this campus and also the Alfred Campus,
14 so she goes back and forth.
5 Q. Is that Tara Singer?
16 A. Tara Singer-Blumberg.
17 Q. Was she the union rep?

18 A. Yeah, she's a -- they call it Labor Relations
19 Specialist and she's a but she's no a member of
20 the New York Bar. She was educated in Canada which
21 is
Q. Is it her that you contacted when you the non
23 renewal?
24 A. Yes.
25 Q. , and did you ever -- dj.d you have a meeting with

70 Franklin Street, Suite 601, Buffalo, New York 14202
716 853-5 44 0000391\
17-38, Document 22, 02/01/2017, 1961823, Page391of487

J. MALKAN -- BY MR. SLEIGHT -- 12/18/2013 103
1 her at some point where you discussed what your options
2 were?
3 A. I don't remember exactly. We might have talked on the

4 phone or e-mailed. I we communicated. I can't say
5 whether it was a face to face.
6 Q. And eventually the union filed a grievance on your
7 behalf?
8 A. There was never a grievance filed. That comes under
9 the collective bargaining agreement and the remedy that
10 they chose was an improper labor practice at PERB. And
11 then they went to ask for permission from general
12 counsel at NYSUT to also represent me as an individual

13 in a breach of contract lawsuit, so they did that as
14 well.
15 Q. I want to ask you about their choice to not file a
16 grievance under the CBA. What's your understanding of
17 why they did that?
18 MR. ARBEIT: Objection to the extent it gets into
19 any attorney-client privilege.
20
21 BY MR. SLEIGHT:
22 Q. Can you answer that question without --
23 A. I can just say that the CBA doesn't cover situations
24 like this as far as I know. It wasn't really an
25 option.

170 Frartkli:n street;-su-tte601; Buff"Cllo; New YorkTl.!Z02
716-853-5544
000039j

1 Q. So they, they decided or you tell me -- you mean you

2 said they decided to pursue an Unfair Labor Practice?
3 A. Yes.
4 Q. You obviously were given the option of saying yes or no

5 to that?
6 A. Yes. I mean, they are the -- they were the charging
7 party at PERB and they were acting on behalf of
8 interference with the legal rights of the union.
9 Q. Okay. But they at some point told you, this is what we
10 think we should do and you were okay with that?
11 A. Yes.
12 Q. And so they brought a PERB charge, is that what they

13 call it?
14 A. I think they call it improper practice charge.
15 Q. Improper practice charge, and they handled that on your
16 behalf or on the union's behalf? I'm a little confused
17 as to who is the party in an Unfair Labor charge like
18 that?
19 A. It's the union. I think it's possible to add a private
20 name, but it was the union. It was the UDP versus SUNY
21 Buffalo.
22 Q. And you also said that they got permission to pursue a
23 breach of contract claim in the Court of Claims?
24 A. They have to clear it with NYSUT general counsel
25 because they have limited resources, so they had to

no street; suit:e--our;- Biiff-aTo~ --ffew YOrK"T4-2b2
Frarfk'.Tin:
716-853-5544
00003tHi
1 feel it was an important enough case that they could

2 undertake it and they did.
3 Q. Aside from those two -- well, we have three really
4 avenues that you pursued. One was just discussions
5 with your colleagues on the faculty?
6 A. Yes.
7 Q. About what you might be able to do and nobody there, at

8 least as I understand your testimony, had any
9 suggestions as to how you might proceed?
10 A. Just to write a letter to the whole faculty and make
11 sure they know about it which I did, I think.
12 Q. And then the second thing was to go to the union and

13 they did two things for you, which one was the Unfair
14 Labor charge or Unfair Labor Practice charge at PERB
15 and the action co:mrnenced in the Court of Claims?

16 A. And there was another thing, too, which was that I went
17 to the Grievance Committee because I looked at the
18 faculty bylaws carefully and I saw that well, here's
19 another way to get your due process, so I tried that
20 approach, too.
21 Q. Now the grievance committee is a law school entity;
22 correct?
23 A. Yes.
24 Q. And -- well, withdrawn.

25 Other than those avenues, were you aware of any

110 --FYaril<Tiri street; suit.e-6ur; --gu-naro; NewYar-1crzr202--
716 - s s 3- s s 44 000039'1
7, 487
Case 1:12-cv-00236~MAT~H.KS Document 63-3 Filed 08/30/14 Page 26 of 76
6:30p.m.. Dhmer at Rue Fl'l.Dldhl

Guyon Binder, Ludnda ft~, JmmkMu:nger, Jkrl
Westbroo'4: . .
9:30.-10:30 a.m.
Room.725
10:30.-11:30 a.m.
:awm513
12:30..2:00 pJ.n. Lunch~o~:

Room.545 "Wbt ii a Copy?'~
(FacuitY ~) ' .
Leei Albert, Dtmme Avery, Gu.yon Binder, Lucltmk
Fhlley, Ka Joyce, George Knsuut Betty Memcll, Jim
Mmes, Johtmu Oniko'rie,.Jut Schlegel, Kuen
Spencer, N0iey Staudt,-Jim Wooten, Marcia Zubrow
2:00~3:00 p.m. BenBntnwi

R@om6!8
3:004:00 p.m.
Room319A.
000039
487

DECLARATION OF
SATISH K. TIUPATm, PhD
v.
MAKAU W. MllTUA ud
CHARLES P. EWING,
m theirmdMdmd~
and correct:
l. I a.in employed by the University at Buffalo, The State University of New York
{"University") as the President of the Uniwrsity.
University.
3. This declaration i.~ made based upon my personal knowledge, upon ~ew of
dooumen~ generated by the University in the ordinary and normal oourse of business,, and upon
review of eleven documents that I understand were provided to the University at the request of
Plaintiff's counsel for purposes of my review in comu:ction with this swom statement
4. This declaration is further made put"swmt tom~ with Plaintiff's counrel
whereby Plaintifra eoutlSel agreed to withdraw a subpoena ftir my deposition. I have not been. asked
w testify as a witness in. Plaintiff's action against~ Mut'ua mi Charles Ewing pending in the
Western District of New Yot:k, 12-ev--0236.
000039J

s. I was not personally involved inorawareoftheappoimmentsmade by the Univemity
to the P~ Jeffiey Mallam, and I was not personally involved in0r aware ofany faculty review
'
~ures or processes including any faculty votes that may have occurred withiespectt.o any such
appointments ofMr. Malle.an. Thus, I have no personal knowledgerelatingt.o any such appoirdments
or review procedures or processes including any faculty votes tbat may have oCClll'J.'ed with i:mpect to
Mr.~ other than information I teamed in connection with litigation brought by Mr. Mal1am
against the University or University employees [b.ereinaf'ter ''litigation.,).
6. I was not personally involved in or aware of any otbtt agreements, documents or
understandingsthatmayhaveexistedwithrespecttoMr.Malbn'semploymentwithtbeUni~.
l1ws. I have no personal knowledgemlating to any sUch agreements, documents or understandings.

other than infurmation I learned in connection with litigation.
7. I was not personally involved in or aware of the termination or non.renewal of Mr.
Malkan' s faculty appointment at the time it was made. Thus.I have no personal knowledge relating
to any such termination or non-renewal, other than infonnatlon I learned in connection with
litigation.
8. I do not recall having any conversations with Mr. Mutuaabout any ofthe allegations
in the Complaint, other than the filcttbat Mr. Mutua was first appointed interim Dean, then Dean. of
the Law School Thus, I could not provide any information regarding the content or context of any
such conversations, ifthey occurred.
9. My review of the eleven documents provided by .Plaintifrs counsel does not refresh
my~llection ofor about any such <:onve:rsations with Mr. Mutua, ifthey occurred. I do notncall
having a conversation with Mr. Muma.regarding his testimony at the PBRB hearina concemiDg any
such appointment of Plain1ilf as a Clinical P:rotessor or a vote of any faculty review committee.
0000400
l 0. I reviewed the eleven documents and set forth herein my knowledge of sudJ.
documents and any discussions involving the subject matter contained therein," as requested by
Plaintiff's counsel.
11. Document 1 isaFebruaty7,2012.lettertoMs. TaraSinger-BlumbergfromBrianT.
Hines enclosing an Octobec 17, 2011 letter :ftom the American Bar Association to myself and. Mr.
Mutua with attachment. I do not recall seeing the February 7, 2012 letter prior to this review. I
believe that I saw the October 17, 2011 letter prior to this review but I do not recall when or in what
context Prior to this review, I bad not reviewed. the attachment to the October 17, 2011 letter. I do
not recall having any conversations with Mr. Motuaoranyone else concerning the October 17, 2011
letter or attachment. I do believe that I spoke to Mr. Mutua 1About Jaw school accreditation review
generally but I do not recall when, in what context, or whether or not it was related to the October
17, 2011 letter or attachment.
12. 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 :ftom me. I do not recaJl bavina any conversations with Mr. Mutua or
anyone else concerning the matters discussed in these emails. I do recall genemlly1he fact that them
was a hearing involving the Public Employment Relations Board ("'PBRB") and that Mr. Mutua
conveyed by email that the University won the hearing. I &, not recall having any conversations
with Mr. Mutuaoranyone else concerning the PBRB hearina I also note that there is an email :from
Mr. Mutua to James (Jim) Newton stating that I showed Mr. Mutuaaletter--presumablythe letter
referenced at the bottom of page one whk:h Mr. Mutua refers to as a letter to me :ftom the union in
0000401
17-38, Document 22, 02/01/2017, 1961823, Page398 of 487
which the union asks me to fire Mr. Mutua. I do not teeall showing Mr, Mutua this letter. I also do
not recall having any conversations with Mr. Mutua or anyone else about ttie referenced letter.
13. Document 3 is an undated letter from Mr. Mal.kan to "Council Members" with
attachmen:t..I do not recall seeing this letter or the athK!hment prior to this review. I also do not
recall having any conversations with anyone ~ut 1his 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 staffwho reads my mail, but I am unawaie
of any facts in this regard. .
14. Document 4 is a letter dated August 28, 2003 fi:om Mr. Mutua to Mr. Ma1kan. I do
not recall seeing this letter prior to this review. I also do. not recall having any conversations with
anyone about this Jetta:. Non-renewal or termination letters e not typically sent to the Provost and
I am aware of no facts to suggest that this letter was sent to me as Provost.
15. Document 5 is a PERB Decision of Administrative Law Judge dated November 8,
2012. I do not recall seeing this document prior to this review. I also do not recall having any
cooversations with anyone about this document I understandft'Om discussions with mroounsel and
from reviewing an email on page two of'Document2 that this document was attached to such email.
however I do not recall opening the attachment or reading the PBRB Decision..
16. Document 6 is a letter to me iiom Mr. Malkan dated September 20, 2012. I do not
recall seeing this letter prior to this review. I also do not recall having any conversations with
anyone about this letter. Based on the date of the letter. I assume that this letter was ~t after
lliigationwascommeocedandthereforetheletterwouldhavebeenroutedbymystaffwhoreadsmy
mail to SUNY Counsel. but I am unaware of any faots in this regard.
0000402
487
17. Document 1 iu letter to me from Mr. Malk!mdatedJune 18. 2012. 1do not recall
seeing this letter prior to this review. I also do not reca!1 having my conversations with anyone
about this letter. Based on the date ofthe letter. I assume t.ba.t tbis letter was sent after litigation was
commenced and therefore the letter would have been routed by my staff who reads my mail to
SUNY Cou.rtsel, but I am unaware of any foots in this ~d.
U!. Document 8 oontai.ns two separate doouments (each labeled as Dooument 8 on the
pdfs provided by Plaintiff's oo~l). which appear to be articles pub~ in the University
newspaper. the Spectrum. purportedly published April 11, 2012 and April 28, 2013, respectively. I
do not recall seeing these articles prior t.o this review. I also do not recall having any conversatiom
with anyone about these articles.
19. D0cument9 is a letter to Lynn Vance, .Esq. from Mr. Malkan&rted November 11,
2011 with attachments. I do not recall seeing this letter or the~ prior to this review. I
a1oo do not recall having any conversations with anyone about thi;i letter or-llie mtiii~h~. Based
on the date of the letter, I as.'JUDl.e t.ba.t this letter was sent after litigation was commenced mi
therefore the letter would have been routed by my staffwho reads my mail to SUNY Counsel, but I
am ~ware of any facts mthis regard.

20. Document 10 is a letter to Charles F. Zukoski from Mr. Malk.an dated September 5,
2012 with attachment. I do not recall seeing this letter or the attadm:!.em prior to this review. I also
do oot recall having any oonversmoos with imyo:rui about the contents of tills letter or the
attachment. Based on the date of the letter, I assume that this letter was sent after litigation was
oommeooed. and therefore the letter 'WOUid have been routed by my staff who reads my mail to
SUNY Counsel, but I am unaware of any firets in this regard.
0000403

Dated: December 12, 2013

Buffaloi New York
/JL /(,-er~
SATISHK. TRIPATW,PhD
6
Case 17-38, Document 02/01/2017, 1961823, Page401of487

DECISION OF THE ACCREDITATION COMMITTEE

January 201 O
The Accreditatfon Committee !the "Committee"),. at its meeting on

January 21-23, 2010, considered the status of The University of Buffalo
Law School, State University of New York (the "Law School") in connection
with the sabbatical site evaluation report submitted by a site evaluation team
comprised of Professor Jesse A. Goldner (Chair}, Professor Emerita Alison
Grey Anderson, Associate Professor Paul D. Callister, Ms. Kay Hodge, Dean
Nell Newton, Professor Barbara A. Schwartz, and Professor David Wantz,
following their visit to the Law School on April 8-11. 2009, and the letter of
response submitted by Dean Makau Motua . dated November 23, 2009. The
Committee also considered the Dean's letter of September 28, 2009,
submitted in respnnse to the Consultant's August 20, 2009 letter.
requesting information concerning compliance with Standard 603(c). fn
addition, the Committee hsct before It the history of decisions made with
respect to the Law School since its last regular site evaluation.
FINDING Of FACT:
History of the Law School
(1 I The University at Buffalo is a public university and is a member

of the State University of New York system. ft has a total enrollment of
about 28,000 g;aduate and undergraduate students.
(2) The Law School was founded in 1887 and became a part of
the University at Buffalo in 1891. It has been a member of AALS since
1937 and ABA approved since 1938. At the time of the site visit, the Law
School remained on the fist of ABA approved schools.
Self Study and Strategic Planning
(3) The Dean instituted the self study process in January 2008
when he appointed a committee consisting of faculty and administrative
staff. The committee familiarized itself with ABA Standards, conducted an
audit regarding compliance, and then reported to the faculty concerning
compliance. Thereafter, various faculty and staff members dratted answers
to the Site Evaluation Questionnaire; the draft was circulated. Then, the
final drafting of the self study process took place; a draft was circulated to
the full faculty and approved after discussion in January 2009.
(4) The setf study ls detailed and thoroughly describes the Law
Schoo!. It does not expressly set forth the Law School's mission and does
not use words like weakness, goals, or objective. However, the self study
stresses the Law School's overarching objectives in educating what it calls
"lawyer-citizens" and it identifies numerous areas, such as legal writing,
adjunct integration and training, clinical facu[ty security, technology, and
ACiLET\45933. l
MUTUA000672
000040\J

Paga 10 of 22
University of Buffalo Law School, State University of New York
participate at 50% or. less time and who are finance<l by various grants, and
one adjunct faculty member who supervises a clinic. It is unclear from the
record what the distinction is between these part-time instructors and the
adjunct clinician, but none of this latter group has job security or participates
in faculty governance.
(48} The Law School recently adopted a new Clinical Faculty

Appointment Policy. The Policy provides for the initial'appointment of non-
tenure-track clinical faculty who are eligible for 0 1ong-term 0 renewable
appointments, as well as tor promotion to the ranks of associate and fuU
clinical professor and for a presumption of renewability once a person
achieves the rank of full clinical professor. Under this pmlcy, however, the
longest contract available, even at the Clinical Professor rank, rs three years
because University policy provides that no contracts can be longer than three
years. The policy does not indicate whether any grounds exist that might
constitute good cause for termination during any "probationary" three-year
term. There rs a review of relevant faculty by a Clinical Visiting Committee
and the Dean in the second year, and a more substantial review in the fourth
year by the Committee on Clinical Promotion and Review and the Dean.
Under the policy, the subsequent reappointment of faculty whq have
completed the requisite probationary period and have been appointed to the
rank of Clinical Professor, is governed by the fo!!owing sentence: "It is
expected that, absent unusual circumstances, the three-year contracts for
Clinical Professors will be renewed.#
(4.9) The policy also states that the Clinical Director will make
recommendations for reappointments to the Committee OA Promotion and
Review. which in tum, will make such a recommef\dation to the Dean.
150) The policy expressly provides that:
In cases where the issue is the performance of the Clinical Professor,

the Dean shall base a decision not to renew on clear evidence of a
failure to maintain the demonstrated ability established in the prior
reviews and recommendations in the promotion and renewal process.
(51) Because the policy was only adopted in March 2009, there has
been no experience in applying it. Under a prior policy, the Law School had
never denied reappointment to a Clinical Assistant, Associate, or Clinical
Professor appointed pursuant to an indefinitely renewable long-term contract,
despite the prior absence of any language relating to the contract being
presumptively renewable.
ACTLET\45933. 1
MUTUA00068:l
000040G
Document "7
I'
UN1v:eas1TY AT BUFFALO LAw ScHoo.L

The State L1niversity ofNew York
SELFSTIIDV
---- -
-~-'---~ -..,; ~
Approved by the FacJJlty

January 21, 1009
llllUTUA000423
000040i'
487
Case 1:12.. cv-00236.-MAT-HKS Document 63-2 Filed 08/30/14 Page 75 ot 81
and oo~giaHty are also a part of the decision., Service includes factors such as meaningful
support of the Law School. University, oommi.mity, and profession. Collegiality has ot.\er
dimensions. Mim.ia.! respect among oolleaQ'ues is essential to the Law School and toletanoo of
intellectual diversity and collegial respect are important values lii the promotion and tenure Of
faculty., -
After successful Law School review, !he candidate's dossier is submitted with the Dean's
letter of submission to the President's Review Board (PR}3). This group, comprised of senior
scholars :from aCI'QllS the University, ~ an iru;!eperulent review of the~ and issues ti
recommendation for or agairist promotion and t.enure m the University Provost. The Provost,
who :renders a declsio,n based upon coosidemtion of ftle entire record, makes a recommendation
to the President ofthe University, who delivers the Univerllify's final decisiotI oo the matter,
aru,bject to approval by the Chancellor.. No re.commendation for promotion and temtre
originating in the Law School has ever b(len denied by final University decision.
B. Clmbiand~udWritmgF~
t. amiw Faculty
All indicated above in Part lll.F. the Law Sc::hoql offers eight different clinics. Imtruction
in these clinics is offered by a clinical fac\dty that h!iS ~ in size between aboUt 9 and 15,
m
deperu:ling 00 the precise mix of clinical courses offered any giVen semester. and the interests
of the faculty. Three members of the temtm-tnldc faculty' eurrently teach courses in which the
primary method of ~n is clinical On~ tero.Lred flinulty member, ft.!'.!thony Szczygiel, is
co-director of. clinical programs. Three membe(s of the clinicm filculty are on long-term,
renewable controom Within 'Ille meaning of ABA Standard 4M(c). Thia group includes Suzann.e
Tomkius. the other oo--direetor of clinical programs, The clinical faculty also includes two
additional :full..time and six part-lime ins~rs on short-term. renewable OO!;ltracts who have
offfr.:es in the Law School bu.ilding. Clinical ~on also is provided pat-tlme by ow: Vice
Dean for Student Affairs, a full~time administrator. Finally, anywhere from two to five members
of the adjunct facllhy might in any given semester offer courses in which the primary mode of
instruction is clinica.!.
Undet; the faculty Bylaws (AttacllmMt IV.P), clinica! faculty on the teD:ure,tta.ck have all
the same privileges as any other members of the faoutty. . Clir.lical fooulty on tong-term
renewable oontracts havethe same voting privileges and oommittee service obUgationll as teniJre..
track faculty, with the one exception of participating in personnel actions ooncem.ing tenure.
track faculty, i.e., appointment, promotion, tenure, diamissal, or termination. They may.
however, participate in and vote on such matters respecting other clinical faculty.
Cfuucal tq:1pQintme.nts at the Law School may be made onto the tenure tnicli:, or llll.der a
separate Clinical Appointments Policy (Attachment lV.H) providing fur iru:lefinitel.y renewable
t:Jlree..year oontracts. Under the latter system, review for renewal and promotion occurs in the
following Wf1 New clinical fru.."Ulty on this trnek fall within ,iwisdictio:n of tl:m Clicical
0000400
Case 1:12-cv-00236-MAT-HKS Document.63-2 Filed 08/30/14 Page 76 of 81
Visiting Conunittee. a standing ~ttee of the fu.oolty Clinical Promotion and ~

Committee (CPRC), which comiists of sll tenured famlty ~us full.:time clinical fa.lty. Before
the end of the second year, the Directors of the Clinic oompue a dossier on the ~ of
the c!llldidat.e - at this point consisting mainly ~ f.ellching perfomumce - and _present it to the
Visiting Committee for review. Th.at Committee then :mijkes a ~on to the Dean on
reappointment to atflree..yoar fmn. .
Foll.owmg this initial ~ and begbming in the third year of the initial
oontract, review proceeds every three yeatS in 11. six-year cycle of alternating full reviews by the
CPRC and administrative reviews by the Dean. In cycles when review is by the full Committee,
the Clinic Direclm assemble a dossier compri:ied of written us~ of'the work of the
clinic, including client oon:xmem: and review; written auessmem of the faculty member as a.
teacher, including .review of student evaluat.iom and lett.ers; assemnents from co~ on the
faculty member's contribution to the work. and _ pwgmn of 1he school; ~ of _my
Schobrly or othct writing; and a report on contrlbutions to expanding the national visibility of
. the Law School's clinictil programs. This dossier is reviewed by the .Clinical: Visiting
Committee, which reports "lo the CPR.C, upon which the CPR.C votes how to advise the Dean.
The Dean .makes a fuW dooision based on the reoord and advice teeeived. Appointment to a
renewable tmn by this process generally m1ails promotion to the nmk of Clinical Professor. In.
cycles when review is administntive. the Dea.tl makes a renewal determination based on the
acMce and :recOmmendadoo of the C.linfu Directors.
L'1 tlie last year or so, however, the ff!cit.tty hMl ootil.e to believe that the Clicical
Appo~ Policy is in need of revision, ~ lmndling of clinical pro!!.)tkm and
appointment mattm revealed a lack of shared umstanding of the intended operation of the
policy, and a majority of tile fawl.ty taJne to the ooncl.usioo that the policy ought to be cl!'ll'ili.ed.
In part. the needed clarlficatioll!I c~ clinical' appoiniment and promotion policy. but
clarification. is also required on "~pe:nsatory ~uisi.tes.'' e.g., eligibility for sabbaticals,
aooess to researoh assistants or researoh support, and similar mattel.'S. Some guidance on these
questions may be gleaned from the Polieres of the SUNY ~ md the UUP Collective
Bargaining Agreement.
A subcommittee of the Academic Polley and Progmn Committee (APPC) is currently

revi11ittg the policy, which is very cl.ore to being ready for full oommittm and faculty review.
Amoog the principles that the Committee has ~Y agreed to in revising the policy are
improving oonsisteooy between the clinical appointments poUcy, SUNY regulations, and the
faculty bylaws; clarifying the role of the Clinic Director imd the Appointments Committee in
recruitirig. hiring. and promntion; clarifying and s~ening .the job ~ty afforded to
dinical faculty; a.'ld cia..-ifying and rationalizing cliniool facult/ titles. The APPC presently
a11ticipates being able to recom.rnend a policy for faculty !'Jti(jn some time in late Spring. 2009.
2. Retiearcb alld Writing Faculty
first-year Legal R~ m Writing {LRW) ooume ls staffed a prof!llssi!.'iW'U

skills instn!ICtioo faculty of seven. With the exception of the fbriner Director, 'Wilo is categorized
w:iministra:livcly as a 405(c) clinical professor on a long-term, reiwwabie contract, members of
000040.J
tl.le LRW faculty ~ on short4emi. ~JI reiJeWable annually, &:r~gh authority exists to
renew these oonlricts for periods. of up to three -years; The mcuJ;tys ongoing project of.
rethinking and reoonfigurlng the program bu required the Law School to refrain in the most
rooent years ftom offering ~ of tnore than one year at a time. If all goes acoon:iing to
. plan, however, tile 2009-IO academic~ Wilt usher in a new period of stability along With a
higher professional status for LRW i:ristrootors. The Law Scl\001 has reposted all LRWmstmctor
pos.itjons fur renewable long-term ~ and at a mie of pay approximate one.third higher
than. instmcton oow receive. The precise details .of how the program will 'illtiinatety be
restructured are, however, still under stud.y by the :fiieulty.
C. Teacllmg and Adjuct Fiealties
The part~tlme faculty (other than pan-time clmical ~) oorums of the teaching
faculty anc:Hhe adjunct faculty.
The teaching faculty conists of ti('Ne..Jl individuals in pm-time, non-~t.mok lines

who nevertheless do a sufficient amount of teaching for tile law sclwol, or whose portfooos
include a sufficiently ~ combination of teaching ml administration, to justify allooaii.ng
them ~in O'Brlan Hall. Two memben of the teaching faculty. Melinda Samn and Barbara
Sherk, are:fuUMtim.e-nimators who teach in areas of their legal~ Three members of
the ~g ~ are faculty spouses who are highly qualified lawyers and teachers in their
own right and whose,couraes in their~ of OON ~ mi probsiorud experience provide
valuable a.dditionll to the Law Sr>Jioois curric-.ilar offerings. One of these ir.di~iduats, Amy
Wembrook, also directs the UB In NYC Program, and an.ot.b, Lise Oelemter, directs the Law
School's extemship program. Yet another member of ~e teaching faculty, Charles Cm. is a
former tenmc-track member of the Law School faculty who now divides tds time between the
law school and u:es C'..ollege of Arts and Scleruies, where be bolds an administrative positiQn.
Because of !he Law School's commitment to a pedagogical mQdel that integrates

traditional dootrm.al instruction WI~ extensive inslrl.wtion in both praetice and theory. the Law
School's adjunct faculty is large, Drawing on a stable of roughly l lQ..120 adjunct facU!ty, the
Law School typically off~ comses by about 90 adjunct faculty members in any given year. The
credentials of the adjunct faculty are impressive. ApprQximarely 15 me judges drawn from. both
the federal and New York bcmohes. Many are partners in highly reprded wntown law firms.
Others are present or fumier criminal prosecutors in the offices of the United Stat.es Attorney and
Brie County District Attorney, or I.ea.ding criminal defense lawyers. Other ll(ijunct faculty are
attorneys with civil government agencies, judicial clerks, In-house oorponte counsel, and
po"9'erty lawyers, providing legal services and legal aid. All are experienced and talented la~
who add dept.ii and breadth to thebiw school's oonicular offerings..
~ earlier. tiw development Of ll. deep adjunct mcuity iS a consequence of the

Law School's commitment to a cu.rrlwlar imd pedagogical ioodel that deliberately integrates
ins~rucnon in the 11.ewal prsciice of law into a stnrotU1:e of theoretical and dectrina1 instru.ctloa
Consistent with that medel, the great majority of adjunct faculty teacl1 only one. or two-credit
51
0000410
Document
Case 1:12-cv-00236--RJA-HKS Document 56 Filed 06/07/14 Page 1of18

JEFFREY MALKAN,
Plaintiff,
12-CV~0236(A)
-vs-
MAKAlJ W. MUTUA and

CHARLES P. EWING,
Defendants.
STATEMENT OF UNDISPUTED FACTS
Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Rule 56 of the
Local Rules of Civil Procedure for the Western District of New York, Defendant Makau
Matua submits this statement of undisputed material facts in support of his Motion for
Summary Judgment. The only facts material to this motion are not in dispute, and are as
follows:
I. This is an action brought pursuant 42 U.S.C. 1983 seeking redress of alleged
constitutional violations by Defendants. The operative pleading is Plaintiffs
complaint filed on March 23, 2012. Docket No. l ("Complaint").
2. This action arises out of the non-renewal of Plaintiffs term contract of
employment with the State University of New York at Buffalo Law School
3. Plaintiff that Defendants denied him his Fourteenth Amendment right to
As to Defendant Matua, Plaintiff alleges that he denied him due process
0000411
Document
teach in the clinics as an attempt to subvert established rule and give him more
job security than that which he was entitled to. 48 He said that when he became
Dean, he discovered other instances of the title Clinical Professor having been
used irregularly, discontinued the practice, and tried to regularize the use of the
title of Clinical Professor so that it comported with the rules. 49
27. On April 28, 2006, a meeting of the Committee on Promotion and Tenure was
convened by Vice Dean for Academics Susan Mangold to consider the promotion
ofMalkan from Clinical Associate Professor to full Clinical Professor. 50 Mangold
presided over the meeting because Dean Olsen was out of town attending to his
sick father. 51
28. Prior to the meeting, several faculty members expressed strong opposition to
Malkan' s promotion and his continued Directorship of the Legal Research and
Writing Program, and questioned what it was the Committee members were being
52
asked to vote upon.
29. There is sharp disagreement regarding what occuffed at the meeting and what
exactly tbe Committee voted on. Malkan and several third party witnesses
deposed in this action claim that a vote was taken on whether the Committee
should recommend to the Dean that he be promoted to full Clinical Professor, and
that the vote was in his favor. 53 Defendant Matua, on the other, recaHs that the
meeting quid.:ly devolved to a discussion of whether Malkan should continue as
48 Id. at WO- 103.

'19 J;;i. at !Ol, 173-176.
'0 Excerpts of the deposition transcript of Susan Mangold are attached hereto as Exhibit "M" (hereafter
lYuuucu1v Tr.~"). l\1angold Tr. I H2.
51 Id. at t2.
52 See memorandum of James Gardner and Lucinda Finely to Promotion and Tenure Committee dated
April 3. 2006 and April 5, 2006, attached as Exhibit "N."

51 .Sc& . ~'ii 11-12.
0000412
Document 487
Director Research and Writing Program, and that a vote was eventually
taken on whether the Committee should recoIT'~'Uend that the Dean offer Malkan a
terminal one year appointment, and that vote came out in Malkan's favor. 54
30. On August 7, 2006, the UB President's Office issued Malkan an appointment letter
which provided: "In accordance with Article XI of the Policies of the SUNY Board of
Trnstees, I am pleased to offer you an appointment to the position described in the
enclosed document(s)." 55 The enclosed document was an Appointment Data Sheet. 56
The Appointment Data Sheet provided that Malkan's appointment was a "term
appointment" from September 1, 2006 to August 31, 2009. 57 Malkan signed the
Appointment Data Sheet on September 21, 2006. 58 The Appointment Data Sheet
stated that the "Appointment is made in accordance with the policies of the Board of
Trustees, s:pecifically Article XI, and the rules and regulations which govern such
Appointments in the State University of New York." 59
31. The President sent Malkan a second, substantially similar appointment letter and
Appointment Data Sheet on October 16, 2007. 60 The tenn of that appointment
likewise ended on August 31, 2009, and was made "in accordance with the policies of
the Board of Trustees" and "regulations which govern such Appointments in the State
University ofNew York." 61
32. Prior to the P and T Committee meeting on April 28, 2006, Vice Dean Mangold
sought clarification regarding how changes to the ABA Standards regarding term
Matua Tr. 27-43.

55 A copy of the appointment letter is attached as Exhibit "0."
56 A copy of the Appointment Data Sheet is attached as Exhibit"P."
YI id.
saw.
59 ici.
00 A copy of the letter and second Data Sheet are attached as "Exhibit
61 ,lg. ..
10
0000413
Case 1:12-cv-00236-RJA-HKS Document 56-8 Filed 06/07/14 Page 1of13
' .
BYLAWS A.ND STA.l>IDING ORDERS OF
Tim FACULTY OF
THE UNlVERSITY AT BUFFALO LAW SCHOOL
THE STATE UNIVERSITY OF NEW YORK
I. BYLAWS
These Bylaws constitute the regulations for the internal government of the Faculty
of the University a.t Buffalo Law School, the State University of New York (the "Law
School''), as atnP..nded on April 22, 2008.
IL OFFICERS
A. IheDean.
1. The Dean shaJ.l be the Faculty's chief administrative officer and generally
performs the functions of a dean as determined by the President of the University at
Buffalo, the State University of New York, and these By.laws. These functions shall
include t.1'1e foHovving specified po~s and duties:
a. represenfulg .the Faculty in budgetaey and other administrative

matters at the University level,
b. reviewing programs and personnel matters,
c. representing the Faculty in its relations with the 110ruwademic

community,
d. chairing the Budget and Program Rei.riew Committee,
e. recommending Faculty salaries for review the Vice President or

President,
f. serving as an ex officio member of the Faculty Committee on

Appointments and conducting negotiations with
faculty members,
g. chairing the Committee on Promotion and Tenure and the

Committee on Promotion and Renewal.,
h. presiding at meetings of the Faculty, and

Case 1:12CV00236-RJA-HKS Document 56-8 Filed 06/07/14 Page 2 of 13
L performing any other functions which are delegated to the Dean by

the President or the Fooulty.
2. The Dean shall be responsible for planning, initiating, and managing the
academic program for the J.D., LL.M. and other professional degrees and certificates and
for nonprofessional programs at the undergraduate and graduate levels after their
approval by the Faculty. His functions shall indude the following powers and duties:
a, chairing the Faculty Commitrees for Academic Policy and Program

and for Academic Standards and Standing, and
b. making teaching assignments.
The Law Librarian shall be a Faculty Member who shall be in charge of' and
responsible to the Faculty for developing, organizing, and servicing a collection oflibmry
materials to support fully the educational, research, and community programs of the
Faculty.
C. Other Office.
1. To assist th..e De.an in the conduct of the i:.ffaits of the Law School, such
offices as Assistant, Associate, and Vice Dean may be created.
Ill. THE FACULTY
Preamble. The Faculty of the Law School is a unitary faculty and the corporate
authority of the Faculty shall not be divided according to academic programs. Consistent
with this proposition, the Faculty shall operate under a single budget which shall include
its academic aod research programs.
AU ftllMime members of the instructional staff of the Law School who are
tenured, on tenure track, on an indefinitely renewable Iong~term contract, or on track for
an indefinitely renewable loag-term contract pursuant to a recommendation of the
Faculty, and wiio .hold the rank of Professor, C'rlnical Professor, Associate Professor,
Visiting Associate Professor, Clinical Associate Professor. Assistant Professor, or
Clinical Assistant Professor sfuill have voting power. (&ch such individual shall be
referred to as a "Fawlty Member''; oollooti.vely, Fav""'Ulty Members shall be :referred to as
the "Faculty.") A Faculty Member otherwise entitled to vote shall not be deprived of
voting power reason of a temporary leave, sabbatfoal or otherwise, to engage in
research or other educational activities. A Faculty Member shall not have power to vote
at a Faculty or oommlttee meeting upon her or his own promotion, tenure, renewal,
2
JM002523
0000415
dismissal. or termination of appointment and shall not be counted in determining whether

a quorum exists for the purpose of considering and det.ermining the matter. A Faculty
Member on au indefinitely renewable long-term contract or on track for an indefinitely
renewable long-term contract shall not have power to vote at a Faculty or committee
meeting upon a recommendation of appointment, promotion, tenure, dismissal or
termination of appointment with respect to a tenure-trade appointinent and shall not be
counted in determining whether a quorum exists for the purpose of considering and
determining the matter.
Any person holding a full-time joint appointm.ent in the Law School and any other
:academic unit of the State University of New York at Buffi:tlo who is tenured, on ten~"e
track, on au indefinitely renewable long-term contract, or on track for an indefinitely
renewable long-term contract pursuant to a recommendation of the Faculty, and who
holds the rank of Professor, Clinical Professor, Associate Professor, Visiting Associate
Professor, Clinical Associate Professor, Assistant Professor, or Clinical Assistant
Professor shall have 1he same right to vote and to participate in Faculty meetings as
Faculty Members holding a full-time appointment solely in the Law School.
Any Faculty Member shall be eligible for membership cm. any Faculty committee
except as that eligibility may be limited by other provisions of these Bylaws.
B. Powers of the Fa@!ty.
1. The Faculty shall have authority to make determinations on matters including,

but not fi.iuited to:
a. Standards for ma:t:riculation;
b. Curriculum planning and course offerings;
c. Recommendations for appointments to the Faculty;
d. Rules for student conduct and discipline; and
e. Recommendations regarding matters of policy affecting the Law

School.
2. Except as otherwise provided in these Bylaws, all determinations the

Faculty sh.al.I be made by a majority vote of FaoJitiJ Members eligible to vote and voting
mperson at a regular or special Faculty meeting.
3. determinations on recommendations for an initial appointm.ent to
Faculty shall be made by a two-thirds (2/3) vote of the Faculty Members eligible to vote
and voting in person at a regular or special Faculty meeting. A Faculty Member
abstains shall not be considered as voting. Determirurtlons on recommendations for
initial appointment to the Faculty shall be taken by secret ballot except that the
3
JM002524
Case 17-38, Document2?,9.?LQ.!L?017, 1961823, Page41?_-9f4~! . -- - _

Case 1:12-cv-00236-RJA-HKS Document 56-8 Filed 06/07/14 Page 4 of 13 ,
requirement of a secret ballot may be waived by unanimous consent of the Faculty

Members eligible to vote attending such:meeting.
4. All determinations on the following matters shall be made by the

Committee on Promotion and Tenure as provided in ID.B.3:
a. Recommendations for promotion ofaFaculty Member who is tenured

or on tenure track, including the granting of tenure; and
b. Recommendations for dismissal or termination of the appoinilnent of a

Faculty Member who is tenured or on tenure track.
5. All determinations on the following matters shall be made by the

Committee on Clinical Promotion and bnewal as provided in III.E.4:
a. Recommendations for promotion. including the granting of an

indefinitely renewable long-term contract, or renewal of a Faculty
Member who is on an indefinitely renewable long-term con'ftact or on
track for an indefinitely renewable long-term contract; and
b. Recommendations :fur dismissal or termination of the appoimment of a

Faculty Mem.ber who is on an m:lefm.it.el.y renewable long-term
contract or on track for an indefinitely renewable long-term comm.ct.
C. Committee Recommendations.
Matters within the jurisdiction of a committee shall be presented at a Faculty

meeting for the Faculty's consideration only after deliberation by the committee. Except
under extraordinary circumstances, the committee shall also report its recommendations
of
for disposition of the matter. The provisions this peragraph may be waived with the
consent of one-third (1/3) of the Faculty Members present at a meeting, whereupon any
matter, whether or not within the jurisdiction of a committee, may be presented to the
meeting,. and collBidered and decided.
D. Meetings.
1. There shall be an Annual Convocation of the Faculty during September

for the purpose of opening the aaldemic year.
2. A regular meeting of the Faculty shall be scheduled in each month

between September and May, both inclwli.ve. Before the beginning of the academic year,
the Dean,. with the advice of the. Committee on Academic Policy and Program, shall
establish a time for regular meetings of the Faculty, during which time classes taught by
Faculty Members shall not be scheduled. Each September the Dean shall publish a
schedule of the regular meetings of the Faculty for the academic year. Not less than one
week before a regular meeting of the Faculty, the Dean may give notice that there is no
0000411'
02/01/2017, 1961823, Page4l.AQL4.S"-'7----- _---

business for discussion by the Faculty, in which case such meeting will be cancelled.
Meetings of the Faculty shall be presided over by the Deari.
3. Special meetings of the Faculty may be called by the Dean on bis or her
own initiative. Upon a written request signed by at least three Faculty Members, the
Dean shall call a special meeting within one week thereafter.
4. Three days' notice of any meeting of the Faculty shall be given to each
Faculty Member. Except as provided in fil.D.8, all notices placed in the faculty
mailboxes and transmitted by electronic mail shall be deemed sufficient There shall be a
written agenda for all meetings oft.be Faculty.
S. A majority of the Faculty Members eligible to vOte on a particular matter

shall constitute a quorum for the 1:ransaction of business with respect to that matter at any
meeting of the Faculty. Faculiy Mem.ben who are not present in a meeting and who fall
in one or more of the categories in paragraphs a-d below shall not be included in the total
number of Faculty Members which is used to compute a quorum for that meeting.
a. Faculty Members on unpaid leave of absence;

b. Faculty Members on sabbatical leave;
c. Faculty Members who have submitted their resignation from the

Faculty effective at some later date;
d. Faculty Members on term appointments who have received

notification of the termination of their appointment pursuant to Article
XI, Title C, 5 of the Policies of the Board of Trustees of State
University of New York.
6. Upon the request of three voting Faculty Members at a meetin& the vote
upon any matter shall be taken by secret ballot
7. Except as otherwise provided in these Bylaws, an affirmative vote of a

simple majority of the Faculty Members eligible to vote and voting in person shall be
sufficient to transact any item of business.
8. Meetings of the Faculty may be held between June land August 31 only
if the Dean determines that an emergency requires such a meetlng. In the event the Dean
determines. that such a meeting is required, notice of the meeting and the agenda shall be
provided to Faculty M.embers at their homes or summer resideooes~ by the most practical
means available, no later than 96 hours prior to the meeting.
E. Standing Q?mmttlees,
The following shall be the Standing Committees of the Faculty:
s
. JMU0252!f . .
0000419
_... _______ ,,_Case 17-38,J2.9SU.merJ! ??,_ 02JOi/20.'.!- 7t...'.!:~..!..?..~.c Page:tJ_5 of 4~L--~~----

1. Budget and Program Review Committee.

a. The membership of this Committee shall consist of the Dean, _g
QffiQiQ, and no fewer than three Faculty Members to be appointed
annually. All Faculty Members shall be eligible for appointment.
b. This Committee shall be responsible for: budget planning and advising

the Faculty and Demi in developing priorities with respect to allocation
of resources among the several programs; reviewing the performance
of plans adopt.ed by the Faculty; and engaging in long-term planning.
c. This Committee sh.all m.t have the power to deal with individual
faculty salaries, and shall 112! be informed of individual faculty
salaries.
a. This Committee shall be composed of the Dean, ex officio, and four

Faculty Members who are tenured or on tenure track elected in the
following ill8Imer.
(1) 'Each ~ three Faculty Members shall be elected to the

Committee. Th..P.Y shall serve terms of two calendar years
commencing on April 1 next following their election.
(2) A nominating ballot containing the names of all eligible

Faculty Members shall be circulated. Each Faculty Member
may vote for six persons on the nominating ballot. The names
of the six Faculty Members receiving the largest number of
votes on the nominating ballot shall be placed on a final ballot,
which shall be circulated to the Faculty. In the event that any
nominee listed on the final ballot is unable to serve, a new
final ballot adding the name of the Faculty Member with the
next highest number of votes sbaU be prepared and circulated
to the Faculty. F,ach Faculty Member may vote for three
per:soos on the final ballot, and the three persons receiving the
highest number of votes shall be elected to the Committee.
(3} In the event that any elected Committee member is unable or

unwilling to complete the term of office for which he or she
was elected, the Dean shall call a special election to fill that
Faculty Member's unexpired term.
(4) The Faculty shall annually elect one of the elected Committee
members to serve as chair for a one-year term.
6
JM002527
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Case 1:12-cv-00236-RJA-HKS Document 56-8 Filed 06/07114 Page 7 of 13
b. This Committee shall have jurisdiction over and the right to make
recommendations to the Faculty with respect to appointments to the
Faculty.
c. All appointments to part-time 'leaebing positions in the Law School

shall be made by the Dean for terms not to exceed one year. As
provided in ID.E.6.c, the Committee on Academic Policy and Program
shall advise the Dean on part-time teaching appointments, including
the renewal of such appointments.
d. Appointments to fullwtime visiting teaching positions in which (i) the

appointment does not exceed one year, (ii) there is no contract or other
commitment to extend or renew the appointment beyond one year, and
(iii) thereis no expectation that the appointee will be considered for a
filll-time, tenure-track appointment may be made by the Dean with the
advice and consent of the Appointments Committee.
3. Q.ommittee on Promotion and Tenure.
a. This Committee shall be composed of the Dean, who shall be Chair,

and all Faculty Members having tenure.
b. This Committee shall have jurisdiction over and the power to make
recommendations with respect to promotion, including the granting
of t.enme. dismissal, or tenninati.on of the appointment of a Faculty
Member who is tenured or on tenure track. All determinations of
these matters shall be made as follows:
(1) Promotion to the rank of Professor shall be recommended by a

majority of those members having the rank of Professor voting
in person at a meeting.
(2) Promotion to the rank of Associate Professor shall be

recommended by a majority of those members having the rank
of Professor or Associate Professor voting in person at a
meeting.
(:3) The granting of tenure shall be recommended by a majority of

the Committee voting in person at a meeting.
(4) Di.smissa1 or termination of the appointment of a Faculty

Member who is tenured . or on tenure track shall be
recommended by a majority of the Committee voting in person
at a meeting.
7
JM002528
00004i0
71'
Case 17-38, Drn::unient 22, 02/01/~_9J,_I.. 19618g~, _Pag?4'.L 7
(5) Tw0~tbirds of the members of the Committee eligible to vote

shall constitute a quorm:n for the consideration of any matter
coroing before the Committee. With respect to any specific
matter to come before the Committee, the necessity for a
quorum may be waived by unanimous prior con.sent of the
members of the Committee eligible to vote on such matter.
Bach member eligible to vote on any matter shall be notified
by appropriate means three days before any meeting of the
Committee.
(6) Determinations on recommendations with respect to

promotion, including the granting of tenure, dismissal, or
termination of the appointment of a Faculty Member who is
tenured or on tenure' track shall be taken by secret ballot.
4. Qommittee on Clinical Promotion and Renewal .

a. This Committee shall be composed of the Dean, who shall be Chair,
and all Faculty Members who are tenured or on an indefinitely
renewable long-t'erm. contract.
b. 1Jiis Committee shall have jurlSdiction over and the power to make
recommendations with respect to promotion, including the granting of
an indefinitely renewabie long-term con'fra.ct. renewal, dismissal. or
termination of the appoin1ment of a Faculty Member who is on an
indefinitely renewable long-tenn contract or on track for an
indefinitely renewable long*temJ. contract. All determinations of these
matters shall be made as follows:
(1) Promotion to the rank of Clinical Professor shall be

recommended by a majority of those members having tenure or
having an indefinitely renewable long-term contract and the
rank of Clinical Professor voting in person at a meeting.
(2) Promotion to the rank of Clinical Associate Professor shall be

recommended by a majority of those members having tenure or
having an indefinitely renewable long~term contract and the
rank of Clinical Professor or Clinical A$sociate Professor
voting in person at a meeting.
(3) The granting of an indefinitely renewable long~term contract

shall be reoommended by a majority of the Committee voting
in person at a meeting.
(4) Renewal, dismissal; or termination of the appointment of a

Faculty Member who is on an indefinitely renewable long-term
8
JM00252.9
0000421
487
contract or on track for an indefinitely rem:.:wable Iong-tenn

contract shall be recommended by a majority of the Committee
:voting in person at a meeting.
(S) Two-thirds of the members of the Committee eligible to vote

shall constitute a quorum for the consideration of any matter
coming before the Committee. With respect to any specific
matter to come before the Committee, the necessity for a
quorum may be waived by unanimous prior consent of the
members of the Committee. Each :mem.ber shall be notified by
appropriate means three days before any meeting of the
Committee.
(6) Determinations on recommendations with respect to

promotion, including the granting of an indefinitely renewable
long~tenn contract, renewal, dismissal, or tennination of
appointment of a Faculty Member who is cm an indefinitely
renewable long-term contract or on track for an indefinitely
renewable long-tenn contract shall be taken by secret ballot.
a. This Committee shall be composed of three Faculty :Members elected

annually by the Faculty for one.year te:rms. The 1).._an shall be a
member ex officio. and the Dean shall be Chair of the Committee.
The Committee members shall be elected in the following manner
a!Wr the election of the Comtnittee on Appointments, First, a
nominating election shall be held, and each Faculty Member may cam
votes fur three Fawlty Members. The names of the six Faculty
Members receiving the largest number of votes shall be placed on an
election ballot and final election shall be held with each Faculty
Member being permitted to cast votes for three candidates. In the
event that any nominee listed on the final ballot is unable to serve, a
new final ballot adding the name of the Faculty Member with the next
highest number of votes shall be prepared and circulated to the
Faculty. The three candidates receiving the largest number of votes
shall serve for one-year terms beginning April l and ending March 31.
b. Except as otherwise provided in these Bylaws, the Committee on

Committees shall appoint annually all members of standing and other
committees of the Faculty prior to April 30. This Committee shall also
appoint committee chairs except as otherwise provided in these
Bylaws.
9
JM002530
0000422
, .. ,, Case 17-38, Doc!Jr:iient 22, 02/01/2017, 1961823, Page419 of 487

'
a. This Committee shall be com~ of the Dean, ex officio, who shall

be Chair, and no fewer than three Faculty Members to be appointed
annually.
b. This Committee shall have jurisdiction over course offerings and the
curriculmn. The Committee shall advise the Dean regarding teaclllng
mgnments.
c. The Committee shall advise the Dean on a~intm.ent.s to part-time

teaching positions in the Law School. including the renewal of part-
time appointments. The Dean shall report annually to the Committee
on part-time appointments.
7. Qommittee on Admisajnns,
a. This Committee shall consist of no fewer than three Faculty Members

to be appointed annually.
b. It shall formulate. and administer standards for admission of students

into the professional program for the J.D. degree of the Law SchooL
8. Committee on Grievances.
This Committee shall be composed of three Faculty Members to be appointed

annually. Any Faculty Member who feels aggrieved by any matter relating to his or her
rights and privileges as .a Faculty Member, including, but not limited to, terms and
oonditions of his or her employment. may present a grievance to the Committee. It shall
be the duty of the Committee to investigate the grievance promptly and in confidence and
t.o endeavor to adjust it amicably. If the grievance cannot be aqjusted, the Committee
shall make its recommendations which shall be appealable to the Executive Committee of
the Faculty Senate. as provided in the Bylaws of the Faculty Sena:te.
9. Committee on Apajmpic Standards and Star,tding.

This Committee shall be composed of the Detll4 the Associate Dean responsible
for student affillrs, the Registrar ex officio and without vote, and three Faculty Members
to. be appointed annually. The Committee shall entertain and dispose of all individual
student petitions requesting waiver of faculty policy regarding academic eligibility,
comse requirements, examination schedules. and readmission to the J.D. program. The
Conunittee shall advise the Dean and Associate Dean regarding administration of faculty
policy in such matters. AB the need arises, it shall formulate recommendations for
revision of faculty policy in such matters and submit stich recommendations to the
Faculty.
F. Other Committees.
10
JM002531
0000423
case 1:12-cv-00236-RJA-HKS Document 56-8 Filed 06/0"1/14 Page 11of13
From time to time the Committee on Committ.ees may appoint Faculty Members
to special ad boo committees to consider matters not within the jurisdiction of a standing
committee, or to i;onsider particular matters \Vithln the jurisdiction of a standing
committee with the consent of a majority of that committee,
G. Duties !)Committees.
Each committee shall be charged with the duty of reporting to the Faculty the
results of its deliberations on matters within its jurisdiction and recommending to the
Faculty the disposition thereof. In the eve11t of overlapping or unclear jurisdiction over a
matter, the Doon shall determine the committee.which should consider it
R Limitation upon Committee Snee.
IP.sofar as practicable, member"ahip on st:imdir.ig ev<runit"..ees shall be rotated

among members of the faculty. The Dean shall be an ~x officio member, without voting
power, of each committee of the Faculty of which he is not a voting member, except the
Committee on Grievances.
Committee elections shall be conducted by the Dean, or the Dean's delegate.

These elections shall commence during the month of February and shall be completed by
March 3 l of each year.
The Committee on Committees may appoint members of the professional library

staff to any committee to which such an appointment is deemed appropriate.
IV. ADOPTION AND AMENDivIENT OF BYLAWS
These Bylaws may be adopted and amended by a two-thirds (213) vote of the
Faculty Members present and eligible to vote, provided that a proposal to adopt or amend
be submitted to the Faculty at least ten (10) days in advance of the meeting at which the
proposal is to be ooruiidered. Amendments may be proposed by any three (3) Faculty
Members. These Bylaws shall take efftict immediately upon their adoption.
I. Establishment, Purpose, and Powers of the Board
A Faculty-Student Relations Board (FSRB) shall be permanently established.
11
JM002532
0000424
Case 1:12-cv-0023$~RJA-HKS Document 88-3 Filed 0~/24115 Page 4 of 39
Uttivenity at Buffalo Law School

The. State University ofNew York
From: Tony Szczygiel, co-Director of Clinical Legal Educatio;Ff"
To: Committee on Clinical Promotion a:n.d Review

Re: Contract Renewals for Clinical Professors Suzanne Tomkins and George Hezel
Date: April 6, 2009
Our Law School employs Clinical Professors by means of renewable three-year contracts. The
contracts for Slle Tomkins and George H.ezel will expire this August. We need to address renewal
promptly. Our by-laws require a vote of your committee before the Dean decides on such renewals.
Along with the cvs for George and Sue, I have attached my recommendations for your consideration.
The Dean will be asking you to recommend renewal of these contract at the next meeting of the
CCPR.
John lord O'Brian Ha!t BlJffalo, NY 14260-1100 0000425

J11I; W~) 64~' . ....... .. .... f!Jll:JU6) ~4'>:: .
Viiit us at W\iltW.!aw.buffalo.edu
Document 487
Case 1:12-cv-00236~RJA-HKS Document 88-3 Filed OS/24/15 Page 5 of 39
--- Ori inai Mess

!lftb~~f -
To: Anthony H Sz~, Athena Mutua; 'Barry B~er' : Bob Reis; Qb..arles P. Ewing; Qav1d A
Westbrook; D~vid M~~l ; 'Dianne AverJ.' , Errol Meldinw; Ered Konefsk~; ~orge Hezel : .Gfillffi
~: 'Gyyora Binder; Isabel Marcu::i; ~rriil Y"lt!'ln; Jw.et Lindgren; Jeff Malkaa; Jim Gardner;
Jim MiHS. : ~Scares-Trent ; Lucioda Finley ; l,.on Mathfil; Ma~ay M!Jl:WS! ; ~~ ; l\11~
Mt;Cluskey ; PhilJ:i~llf!J : R Nils Olsen ; ~!rli French ; Rick Su ; Rob Steinfeld , 'Robert Berge1' ;
fut.ilm; ~; ~" Suzanoo Tomkins: Jersasa Mlller; 'Tom Disare' ;
~uffalo.edu
Sent: Monday, April 20, 2:009 2:38 PM
Subject: CCPR Meeting following 4/21 faculty meeting
Dear Col leagues:
Please note that there will be a very brief meeting of the Committee on Clinical Promotion and
Renewal (CCPR) immediately following the conclusion of the faculty meeting on Wednesday,
April 2 I (scheduled for 1:302:30 p,m, in the conference center) Membership on the CCPR
consists of" all Faculty Members who are tenured or on an indefinitely renewable long-term
contract" Faculty Bylmvs IU(E)(4).
Makau Mutua
Dean
Distinguished Professor
Professor of La"v
H. & Hilda L Hurst Faculty Scholar
Human Rights Center
State University of New York
Buffalo Law School
319 O'Brian Hall
Buffalo, New York 14260
Tel (716) 645-2052
16) 645-5968
. htip'//ssm.cmnLautho~32.
22, 487
l!JJrai!versnty at Buffafo Law Sr.c:hooll

The State Uni11ersity of New Yr;rk
OHic<i of the Dean
MEMORANDUM
TO: Satish K.Tripatbi, Ph,D

Provost and Executive Vice President for Academic Affairs
FROM: Makau Mutua

Dean and SUNY Distinguished Profess01{(!) {
V Ii/
DATE: May 21, 2009
RE: Reappointment of George Bezel to the Rank of Clinical Professor
Wlth this memorandum, I recommend the reappointment of George Hezel to the

rank of Clinical Professor effective September 1, 2009 for a three year term ending
8/3 l/20 l 2. His reannointmcnt with !be title of Clin!cai Professor is nursuant to our LDW
~ - - - - - J. ---- - - - - - - -
School Standards for Clinical Faculty Appointments, approved by the faculty on March
20, 2009, These Standards define H renewable te1m contract alternative to tenure-track
appointments for om full-time clinical faculty and a regularized process for appointment
and retention decisions al a qt1aliftecl nmlc George was recommended by the law school
faculty to be reappointed to Clinical Professor on April 22, 2009.
George Hezel plays a central and valuable role in our clinical legal education
program. l am pleased to recommend Ills reappointment This change will have 110 fiscal
re!: {716} G4S-2U52

~I~~ Joho Li.He! (/C!ri,01n H,_1H, r,uU<1!0 1 NY l<P60- l !00
r~b.t: (J 16) (~'.l5-S!JG8. E-rnail: !d~A.... f;k;nn'f 1.PibuHL'lk!-,CdU \Neb: V./WW.law.hut-L'.'d0.0(1\;

000042'?
Document 487
To: Faculty
From: APPC
Date: March 20, 2009
RE: Memo and Proposed Clinical Faculty Appointments policy
The recommends that the Faculty adopt a Clinical Faculty Appointments Policy (Proposed
Policy) to replace the one dated October 14, 1994 and adopted by the faculty on March 31, 1995
(1995 Policy). Sue Mangold and Tony Szczygiel were the primasy drafters of the proposed
policy, aided by extensive consultation with Clinic co-director Sue Tomkins and substantial
input from the APPC. We will present the proposed Clinical Faculty Appointments Policy to
the voting faculty for approval at the March 20 faculty meeting.
Clinical Legal Education Overview

The UB Law School staffs the clinics with faculty who are: 1) tenure track 2) long-term contract
track 3) on short-term contracts and 4) adjw1cts. 1 Our appointments process is different for each
of the four tracks.
This Proposed Policy addresses the recruitment, hiring, review and promotion for clinical faculty
hired on long-term contracts and short-term contracts. The law school's Promotion and Tenure
Policy covers all tenure-track appointments to our faculty. 2 Our newly adopted Adjunct Policy
governs the hiring and renewal of Adjunct Instructors who teach using a clinical model.
1 Six full-time faculty have regularly offered clinic courses: one tenured professor, (Tony
Szczygiel); three Clinical Professors with long-term contracts, (George Hezel, Torn Disare,
Tomkins) and two Clinic Instructors (Lauren Breen and Sara Faherty). Vice Dean for Student
Affairs Melinda Saran supervises the Social Work Clinic that satisfies the fieldwork requirement
for the JD/MSW joint degree program when other clinics me not appropriate. Nils Olsen
returned to clinical teaching in Spring 2009, and Bob Berger will be resuming his clinic for the
Fall '09 semester. Other faculty members, including Barry Boyer, Phil Halpern and Peter
Pitegoff, have offered clinics in the past.
Five part-time clinical instructors support the clinical work (Kate Rebhan (20%), Kate Cerulli
Remla Partimsathary (50%), Sa..111 Magavcrn (50%) and Aaron Bartley (10%)). Grants
obtained by the Clinical Professors substantially fond these positions.
One adjunct (Steve Sugarman) supervises a
Malkan, while Director the Research and Writing the title of

after a renewal and promotion process similar to that in the 1995 Policy.
promotion and tenure policies do not

,-.. ,,.u..,..,u,, faculty. Approximately 20 years ago
the tenure
never approved those
applies a set of scholarship, -~""',,.'"'""
00004.Z
Clinical Legal Education. Overview~ The Law School currently has eight clinics: Affordable
Housing; Community Economic Development; Enviromnental Law and Development;
Environmental Lmv and Policy; Law and Social Work; Mediation; William and Mary Foster
Elder Law and Women, Children and Social Justice.
The clinic faculty members teach seminars and courses in addition to their clinical course, with a
typical semester course load for foll-time clinic faculty being one clinic and one non-clinical
course. 3 This approach makes the clinic faculty more "efficient'' in that they are providing more
credit hours of instruction for students than if they were limited to the more time-intensive
clinical approach. It also results in an enriched curriculum, with the clinic faculty and their
substantive knowledge, better integrated into the UB Law School's curriculum than is the case at
most other law schools. In line with the Law School's interdisciplinary focus, clinical offerings
regularly are cross-listed at other UB Schools and included in the academic program for dual
degree students, such as the JD/MBA, JD/MPH and JD/MSW students. 4
Additionally, clinical faculty members perform a wide range of service within the law school
beyond their committee assignments. They also perform key leadership roles in the cornmunity
that directly benefit our law schooL 5
3Recent upper-level courses taught by the clinical faculty include: 'fitQ_cm: Community Economic
Development Law; Non-Profit CorporatiorJrax Exempt Organizations; Applied Tax; Cerulli:
Family Violence: Legal, Medical and Cultural Perspectives; Family Law Colloquium; Advanced
Topics in Domestic Violence Law; Law and Mental Health; Disare: Acquisitions Tra.nsactions;
Financial Institutions, Transactions and Products; Faherj;y: Topics in Poverty Law; Living Wage
Externship; Urban Development in NYC; Hurricane Katrina; Housing, Finance and
Development; Hez;i,tl: Urban Development in NYC; Closing a Tax Deal in NY; Housing Finance
and Development; M~vem: Green Cities; Housing Preservation; Economic Development: A
Citizen's Tool Kit; Topics in Poverty and the Law; Local Development: A Citizen's Tool Kit;
Olsen: Civil Procedure; Saran: Legal Profession and Ethics; Ethics; Special Education Law and
Practice; JD/MSW Field Service Colloquium; S11.gar111~n: Mediation Theory and Practice;
Szc_]ygiel: Introduction to Health Law; Elder Law; Administrative Law; I9mkins: Domestic
Violence Law; Family Law Colloquium; Katrina; Advanced Topics in Domestic Violence Law;
Domestic Violence Advocacy Externship.
4Torn Disarc has coordinated the JD/MBA Colloquium and co-teaches Housing Finance
Development, a course cross listed with the School of l\fanagement; Melinda Saran coordinates
the JD/MSW program at the I ,aw School; Kate Cemlli's Family Violence: Legal, ~vfedical
Cultural Perspectives is cross the University of Rochester School of Medicine.
5Additional Responsibilities of the Clinical Faculty include: ~=.,1.,

Sustainable Housing); Partnership for Public Good~ Housing,
Development Director; Faculty Advisor to Student Editors of ABA
Affr.1rdable and Community
Director; Faculty to Student Editors
Affordable Housing and Community Economic Development; Law School Representative on
2
00004,HJ
17-38, Document 22, 02/01/2017, 1961823, Page427 of 487
Background of the proposed revision: In December 2007, the Committee on Clinical

Promotion and Renewal (CCPR) unanimously voted to recommend the continuing appointments
of Clinical Professors Tom Disare and George Hezel to long-term contracts and the promotion of
Sue Tomkins to Clinical Professor, with a long-term contract. The CCPR further voted
unanimously to grandfather the initial appointment of Lauren Breen and Sara Faherty in
accordance with the 1995 policy as was done previously for George Hezel and Tom Disare. The
CCPR also unanimously voted to promote Lauren Breen and Sara Faherty to Clinical Professors.
Due to administrative issues and a hiring freeze, these appointments were never finalized.
Lauren Breen and Sara Faherty remain as Clinical Instructors with short-term contracts.
At that December 2007 meeting, the Visiting Committee for Clinical appointments
recommended that the APPC revise the 1995 Policy in light of the following factors:
1) The 1995 Policy focused on the transition to a mixed staffing model of the Clinic, adding
long-term contract faculty. That transition took place nearly a decade ago.
2) The 1995 Policy does not describe a clear procedure and standard for continuing appointments
Neighborhood Legal Services Board, 2006 to present; Hezel: Housing, Finance and
Development Law Concentration Director; Magavem: Coalition for Economic Justice and
founder of the Partnership for the Public Good; Buffalo Living Wage Campaign; Parthasarathy:
Training, presentations, consultations and other Domestic Violence work as defined in STOP
grant that funds her position; Rebhan: Provides research support and maintains website and
Resource Link as defined in STOP grant that funds her position; Saran: (in addition to
responsibilities of Vice Dean for Student Services) training throughout NYS on Education Law;
Impartial Hearing Officer Training Grant responsibilities; Sugarman: Annual Intramural ABA
Regional Representation in Mediation Advocacy Competition (2-day event for past 7 years
involving 40 volunteer judges/mediators); Feb. 2008 Regional ABA Competition here at UB;
assistance to Student ADR group; guest lecturer in Family Law Colloquium; Szczygiel: Health
Law Concentration Co-Director; UB Center for Clinical Ethics and Humanities in Health Law;
Researcher on Four Seasons- the Experience of Midlife and Older Adults in the Buffalo Niagara
Region (2006 to present); Member of Graduate Faculty; Law School Representative on
Neighborhood Legal Services Board 1998- 2006 (VP 2001- 04, President 2004- 05); New York
State Eighth Judicial District Pro Bono Committee member, presenter at numerous Law School,
New York State Bar Association and Erie County Bar Association Continuing Legal Education
programs; Tomkins: Family Law Concentration Director; Clinic Co-Director; Faculty Advisor to
Buffalo ADR (organized Annual Intramural ABA Regional Representation in Mediation
Advocacy Competition- 2-day event for past 7 years involving 40 volunteer judges/mediators
and the 2004 and 2008 Regional ABA Competition here at UB); faculty advisor to Domestic
Violence Task Force (hosted a day-long event for over 40 women and children from local
domestic violence shelter providing a variety of services and events with community agencies
and local attorneys); Convenor of the Baldy Working Group on Families, Children and the Law;
responsible for grant funded work including trainings, presentations and resource development,
grant reporting and grant applications.
00004J.l
of Clinical Professors. In preparing for the December 2007 meeting, the Visiting Committee had
a difficult time with the lack of clarity anc,l consistency in the policy.
3) The ABA Council of the Section of Legal Education and Admission to the Bar revised its
accreditation Standard 405 in 1996 and one Interpretation of that Standard in 2005. As part of
the goal of establishing conditions "adequate to attract and retain a competent faculty," Standard
405 requires that each law school "afford full-time clinical faculty members a form of security of
position reasonably similar to tenure, and non-compensatory perquisites reasonably similar to
those provided other fuJl-time faculty." Interpretation 405-6 explains that a law school can meet
the security of position criteria through a separate tenure track for clinicians or a program of
renewable contracts leading to presumptively renewable five-year contracts.
4) Our Faculty has amended our bylaws, creating a Committee on Clinical Promotion and
Renewal with duties otherwise delegated in the 1995 Policy.
5) The 1995 Policy imposed requirements on the candidates that, based on our experience to
date, do not serve us well. The extensive dossier production and the repeated solicitation of
outside letters of support in the Clinical Professor reappointment process were especially
problematic.
In December 2007, the APPC created our subcommittee with the task of drafting a revised policy
for APPC consideration.
In the course of preparing this Proposed Policy, we identified additional areas regarding clinical
iegal education that are not covered by that policy but that are in need of a law school policy.
These additional recommendations fall into the following areas:
1. Integrating the clinics into law school curricular planning;

2. Developing new clinics;
3. Hiring faculty and promoting Tenure Track faculty who use a clinical teaching model;
4. Determining salary, benefits and voting participation of Assistant, Associate and Clinical
Professors~
5. Handling clinic~related income and bequests.
A subco1mnittee of the APPC is addressing these issues.
0000432.
UNIVERSITY AT BUFFALO LAW SCHOOL - Policies and Procedures
Clinical Faculty Appointments Policy - approved by the faculty on March 20, 2009.
Clinical Legal Education plays an important role in the University at Buffalo Law School
curriculum. The Principles, Aspirations and Strategies for the University at Buffalo Law School,
approved by the faculty on May 16, 2008, states that:
An appropriate and effective law school curriculum must integrate a sophisticated clinical
education program.
The clinical program is a significant part of the opportunities we offer our law students for "live-
client or other real-life practice experiences, appropriately supervised and designed to encourage
reflection by students on their experiences and on the values and responsibilities of the legal
profession, and the development of one's ability to assess his or her performance and level of
competence... " ABA Standards for Approval of Law Schools, Standard 302(b)(l).
To maintain a strong and vibrant clinical program, we need to clarify the Law School's
commitment to the clinical faculty. We attract and maintain a quality clinical faculty, as with the
academic faculty, in many ways, including the offer of job security under the policies set forth
below, and academic freedom. This policy addresses the hiring, contract renewal and promotion
of clinical faculty on long-term and short-term contract tracks. The goal is to provide attractive
job security and academic freedom appropriate to the law school setting by providing a form of
security of position reasonably similar to tenure, while allmving for a limited number of short-
term clinical appointments that further the goals of the Law School and the clinical program.
I. Long-Term Contracts
Full-time members of the Law School's instructional staff, appointed to an indefinitely

renewable long-term contract, or on track for an indefinitely renewable long-term contract and
who hold the rank of Clinical Professor, Clinical Associate Professor, or Clinical Assistant
Professor are Faculty Members of the Law School. Bylaws, III (A). These Faculty Members
have full voting rights except they cannot vote "upon a recommendation of appointment,
promotion, tenure, dismissal or termination of appointment with respect to a tenure-track
appointment," Id. These Faculty Members have the right to participate fully in faculty
governance except they cannot serve on the Appointments or Promotion and Tenure
Committees. Bylaws, III (E)(2) and III (E)(3).
a. Initial Appointment
i. The Search: The Dean will approve a search for long-term contract track
clinical faculty positions. The Appointments Committee will consult with the
Clinic Director(s) in designing an appropriate search. The Appointments
Committee may delegate the search to a subcommittee, that in the ordinary
course of business, will consist of the Clinic Director, ex officio, at least one
Clinical Professor and at least one tenured or tenure-track faculty member.
0000433
Document 487
ii. The job description: The job description and minimum qualifications for
the position will focus on the skills and experience that fit the clinical need.
iii. The Appointment: For long-term contract track clinical faculty positions
the faculty will follow the process for appointing new faculty members set out
in our by-laws.
iv. The Term of Appointment: The initial term of appointment shall be three
years. Absent special qualifications for a higher title with an expedited
renewal process, the initial appointment of a faculty member on the long-term
contract track sha11 be as Clinical Assistant Professor.
b. Visiting Committee: The Committee on Clinical Promotion and Review (CCPR)
shall assign a three member Visiting Committee for long-term contract track clinical
faculty. The assignment should be made during the first teaching semester, in the
same manner that tenure-track faculty are assigned a Visiting Committee. The
Visiting Committee shall consist of at least one Clinical Professor and at least one
tenured Professor.
c. The Renewal and promotion decision for a Clinical Assistant Professor:
Before the end of the second year of the Clinical Assistant Professor's three-year
contract, the Clinical Director(s) will present a recommendation on renewal, based
mainly on the quality of teaching, to the Visiting Committee. The Clinical Assistant
Professor will also submit to the Visiting Committee a statement on teaching and
service. The Visiting Committee will present this material, along with its own
recommendation, to the Dean. The Dean will consider the materials and presentation
of the Visiting Committee in determining whether to renew the Clinical Assistant
Professor for an additional three years. The renewal is approved when all members
of the visiting committee and the Dean agree to renew. Otherwise, the renewal will
be considered by the CCPR which will issue a recommendation. The Dean will
consider the CCPR recommendation, and the materials on which it is based, in
determining whether to renew the contract. It is expected that, absent unusual
circumstances, the initial appointment will be renewed. The standard for a favorable
recommendation by the Visiting Committee and the Dean is:
that the candidate, upon eviden<;e before the committee, has demonstrated the
ability and promise that led to his or her initial appointment.
Upon renewal of the contract, the Clinical Assistant Professor will be promoted to
Clinical Associate Professor.
d. The Renewal and promotion decision for a Clinical Associate Professor:

Before the end the second year of the Clinical Associate s three-year
Visiting a it to
CCPR. This dossier shall include an Assessment by Clinical Director(s),
i. for review: In determining if a full-time
meets standards and obligations similar to
full-time faculty, the areas
be judged in terms of the
6
Specifically, these criteria for the review are:
1. The candidate has mastery of the subject matter related to his or

her clinical work.
2. The candidate has made a significant contribution to a clinic that
has served a substantial educational role.
3. The candidate has offered a high level of instruction in clinical
and classroom settings.
4. The candidate effectively has integrated classroom and clinical
teaching.
5. The candidate has contributed significant service to the Law
School, University or community and been a good colleague.
6. The candidate has contributed to the reputation of the UB Law
Clinical Legal Education program.
Typically, the candidate's dossier shall include a) an assessment by the

Clinical Director(s) on the contributions to the Clinical Legal Education
Program, the Law School and the Community; b) a teaching evaluation by the
Visiting Committee including evaluations by students and by faculty members
who visit the courses; c) letters from law school colleagues and from
community representatives who can attest to the Clinical Associate
Professor's contributions, including writings, if any, that will be internally
evaluated with a written report of the evaluation.
ii. CCPR: The Visiting Committee will present the candidate's dossier to
the CCPR with a recommendation and request the CCPR vote on a
recommendation for reappointment and Promotion to Clinical Professor.
iii. Dean: The Dean shall consider the recommendation of the CCPR and the
dossier and shall set forth in writing the reasons s/he agrees or disagrees with
the CCPR' s recommendation regarding reappointment and promotion to
Clinical Professor. The Dean shall forward the results of his/her evaluation
and a recommendation regarding reappointment and promotion to Clinical
Professor to the Provost, along with the vote and recommendation of the
CCPR, for the Provost's final determination.
iv. Provost: The Provost makes the final determination regarding contract
renewal and Promotion to Clinical Professor. Since these recommendations
do not involve tenure consideration, review and approval by the Provost is
sufficient to effect them.
e. Subsequent Reappointments of Clinical Professors: It is expected that, absent

unusual circumstances, the three-year contracts for Clinical Professors will be
renewed.
i. CCPR: The CCPR, based on the recommendation of the Clinical

Director(s ), shall vote on a recommendation for reappointment of the Clinical
000043~
Professor. If the Clinic Director is up for renewal, no additional

recommendation will be provided
ii. Dean: The Dean shall consider the recommendation of the CCPR and the
materials on which it was based and shall set forth in writing the reasons s/he
agrees or disagrees with the CCPR' s recommendation regarding
reappointment of the Clinical Professor. In cases where the issue is the
performance of the Clinical Professor, the Dean shall base a decision not to
renew on clear evidence of a failure to maintain the demonstrated ability
established in the prior reviews and recommendations in the promotion and
renewal process.
Currently, SUNY policy limits term contracts to a maximum of three years. If

university policy allows for longer4erm contract periods, the faculty will consider
extending these long-term contracts to at least 5-year contracts.
f. Appeal: If a negative recommendation or vote occurs in the process described in I (c),

(d) or (e ), the candidate may appoint an advocate. If the Dean expects to make a final
negative recommendation, the Dean shall inform the candidate of that possibility and the
candidate shall have the opportunity to be represented by an advocate in a meeting with
the Dean before the Dean makes a final recommendation.
g. Notice: In the event a term appointment is not to be renewed upon expiration, the
Dean shall notify the appointee in writing as provided by the Policies of the StJNY Board
Trustees, 8 N.Y.C.R.R. 335.14.
II. Te:rm Contracts other than Long-Term contracts
a. Appointment: The Dean shall appoint Clinical Instructors. The Clinic Director
may recommend the appointment of full-time or part-time Clinical Instructors to a
term of one, two or three years to meet the needs of a current or new clinic program.
In most instances, outside funds will be available for some or all of the costs of this
position.
Every Clinical Instructor should be qualified to teach by credentials, experience, and

teaching ability. Except in unusual circumstances, no Clinical Instructors should
hired to teach a course for academic credit who does not have a M.B.A., or other
appropriate academic credentials. Clinical Instructors should normally have
significant practical experience or a record of scholarship in the su~ject matter the
courses they teach.
Clinical Instructors should be to teach a

concmTently with decision to hire.
b. Development
00004Jo
7, 487
The Dean, or as his designee, the Clinic Director, shall provide to each new Clinical
Instructor, before the instructor begins teaching, written materials setting out basic
information concerning the academic policies, practices, and expectations of the Law
School. The Dean should ordinarily also provide to new Clinical Instructors an
opportunity for a more in-depth orientation in a face-to-face meeting. The Dean shall
ensure all Clinical Instructors are kept abreast of any relevant changes in academic
policies and practices.
c. Annual Review: The Clinic Director(s) shall conduct a_n annual review of all
Clinical Instructors.
d. Reappointment: Because Clinical Instructors are on renewable contracts, the

Dean shall decide whether to reappoint Clinical Instructors. The Clinic Director(s)
shall make a recommendation as to the renewal of the Clinical Instructor's contract.
This recommendation shall include any funding available for this position.
e. Notice: In the event a term appointment is not to be renewed upon expiration, the
Dean shall notify the appointee in writing as provided by the Policies of the SUNY
Board of Trustees, 8 N.Y.C.R.R. 335.14.
f. Application of Policies to Current Clinical Instructors
Implementation of these policies with respect to current Clinical Instructors on

limited tem1 contracts shall proceed as follows:
I. Clinical Instructors who are teaching at the Law School in the year of the
adoption of these policies will not be required to go through the hiring process set above.
2. All currently employed Clinical Instructors will be provided the faculty

development program set out above. The Dean shall take steps to implement this
development program as soon as foasible after the adoption of these policies.
00004J
IX. Complaint in Malkan v. Gardner
00004Ju
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17-38, Document 22, 02/01/2017, 1961823, Page436 of 487

SUPRI<:ME COURT OF THE STATE OF NEW YORK

COUNTY OF ERIE
-------------------------------------------------------------x if! l /') /7 I I -1 ' I/"""'
JEFFREY MALKAN, Index No. 9 , ..- 1 .) f.. / .... 0 \
PI aintiff,
v. COMPLAINT
JURY TRIAL DEMAND
JAMES A. GARDNER,
Defendant
-----------------------------------------------------------x
Jeffrey Malkan ("Plaintiff'), as and for his Complaint in this action against James A.
Gardner ("Defendant"), hereby alleges the following.
CLAIMS
1. This action is f:or mom.-tary damages to redress acts of defamation and libel per se and
for intentional infliction of emotional distress.
2. Defendant's unla'\i\ihl conduct was knowing, malicious, willful and wanton, as well as
extreme and outrageous, and showed a reckless disregard for Plaintiff's rights, which has caused,
and continues to cause, disgrace, humiliation, and shame, permanent harm to Plaintiff's
professional and personal reputation, loss of his vocation and livelihood, and severe emotional
distress.
3. For the past seven and a half years the Plaintiff has been subjected to a campaign of
workplace harassment that has escalated from bullying, grandstanding, and retaliation, to fraud
against the Law School's accrediting agency, breach of contract, violation of in-house and state
court due process rights, tortious interference with employment relations, pe1jury in both state
and federal courts, obstruction of justice, and finally, a false police report publicized by the
Defendant to the Law School community declaring the Plaintiffpersona non gratis and subject.
0000440

to arrest on-sight for criminal trespass on the SUNY Buffalo campus or any other SUNY
Buffalo-owned property.
4. The Pl.aintiff's safety and security have been compromised by the false police report
and its publication in addition to all of the damage the Defendant's slanders and libels have
caused to his reputation., career, and peace of mind since February 25, 2008. The defamation that
is the subject of this action, attached as Ex. B, has received extensive media coverage throughout
western New Yorlc, including the Buffalo Nev-.1s at1d the UB Spectrum.
5. Defendant has publicly asserted that the Plaintiff is capable of committing mass
murder. He has intentionally and maliciously exploited the tragedies of on-campus violence in
the United States over the past decade in order to give credence to his def.amations and leverage
those defamations for his own career advantage.
6. His defamations reached their crescendo in an e~mail message to the Law School
ra,~ulty and staff on October 9, 2015, that took the fom1 of a warning notice with two digital
photographs alerting the faculty that Plaintiff was wanted by the State University Police and that
any sighting of him should be promptly reporte.d as a public safety emergency so that the
Plaintiff could be apprehended and arrested.
JURISDICTION ~1) VENUE
7. This Court has jurisdiction over Defendant James A. Gardner pursuant to Civil
Practice Law and Rules (CPLR) 301 in that he currently lives and works in the State of New
York. Pursuant to CPLR 503, venue is proper in Erie County because Defendant resides in this
County and the events occurred here.
0000441

PARTIES
8. Defendant James A. Gardner is, and was at all relevant times, employed a Profe-ssor of
Law at the SUJ\1Y Buffalo School of Law. Since December 20, 2014, he has been serving the
Law School as Interim Dean.
9. Plaintiff Jeffrey Malkan was employed as a Clinical Professor of Law at SUNY
Buffalo School of Law from August of 2000 until August of 2009, serving the Law School as
Director of the Legal Research and Writing Program until March l5, 2008. He currently resides
in Suffolk County, State of New Yotk.
FACTS
10. On April 28, 2006, the Promotion and Tenure Committee of the SUNY Buffalo
Schoo!. of Law met to make a recommendation on Plaintiff's application for reappointment and
promotion to the University title and rank of full Clinical Professor.
11. Defendant opposed Plaintiff's promotion and circulated a memorand1.un to the
faculty falsely alleging, among other things, that Plaintiff had disrespected him by refusing to
respond to his invitation to meet and discuss the Legal Research and Writing (LRW) Program,
for which he had administrative responsibility since he had joined the faculty in fall of 2000.
12. On the April 28, 2006, the P&T Committee passed a resolution that recommended
the Plaintiff's promotion to a 405(c)protected clinical professorship, kno"111 as "clinical tenure,"
which is mandated for the protection of academic freedom by the ABA accreditation standard for
clinical faculty. The l"ecommendation was endorsed by then-Dean R. Nils Olsen, Jr., upon which
a letter of appointment to the title/rank of Clinical Professor was signed and conveyed to the
Plaintiff by then-President John B. Simpson.
3
7.
13. In January of2008, upon the resignation ofthen-De;;m Olsen, Makau W. Mutua was
appointed Interim Dean of the Law School. Interim Dean Mutua selected Defendant to serve as
Vice-Dean for Academic Affairs of the Law School.
14. On February 25, 2008, Defendant wrote the following statement about the Plaintiff in
a memorandum to Interim Dean Mutua. "[E]vidence has recently come to light of Lmhahmced
and possibly abusive behavior toward at ieast one of the instructors he supervises .... I believe in
consequence that the law school and university should examine closely whatever options might
be available for dealing with what is, to me, an unacceptable situation that significantly impairs
the achievement of the law school's instructional goals." See Ex. A.
15. This statement was false. It was marked confidential by the Defendant, who signed a
request that it be withhek! from the Plaintiff and was placed in the Plaintiffs personnel file in lhe
Dean's Office.
16. On March 15, 2008, the Wednesday in the middle of spring break, Interim Dean
Mutua announced to the faculty, via e-maii, that he was removing the Defendant from the
Directorship of the LRW program, effective immediately. This measure was wide!y perceived
the faculty to be a response to an emergency situation.
and Planning Committee (APPC), Plaintiff requested that Interim Dean Mutua, in view of the
evident urgency of the matter, put the LRW program on the agenda for discussion. He rcfosed.
Plaintiff m frorn. the since he no
the LRW program, an<l Interim Dean accepted.
0
Case 1:12-cv-00236-RJA-HKS Document 108 Filed 02/04/16 Page 21of46
18. Defendant was a member of the APPC on that date and has claimed that he was
present at that meeting.
19. In swom testimony before the Public Employment Relations Board (PERB) on
March 3.1, 2010, then-Dean Mutua falsely testified that the Plaintiff had assaulted him at that
APPC meeting two years earlier, stating that even though he was ''no shrinking violet," he had
braced himself for an imminent physical attack. He further testified that he and the Defendant
had concluded after 1J1e meeting that Plaintiff"might be a danger to some of us in the building."
Dean Mutua also testified th.at he feared the Plaintiff could "go postal" at any time, which is a
colloquialism for a mass shooting. He repeated this defamation, predicting that it was only a
matter of time before the Plaintif''went postal," at a deposition held under the auspices of the
federal district court on December 19, 2013. Defendant has been aware of these defama:tion.s at
all times relevant to this complaint.
20. In that same testimony, on March 31 and April 1, 2010, Dean Mutua perjured
himself by falsely <s-wearing that the P&T Committee, on April 28, 2006, had failed to take a vote
on the Plaintiff's reappointment and promotion, but instead had passed a resolution
recommending bis termination on one~year's notice. He further testified that no one on the
faculty knew what the Plaintiff was "still doing in the huilding" after the terminal year of his
appointment had expired, until he became Interim Dean and gained access to the Dean's Office
personnel files. Defendant has been aware of this perjury at all times relevant to this complaint.
21. On August 29, 2008, Plaintiff received a certified letter from then-Dean Mutua
informing him that he intended to termii1ate his employment on one year's notice and that his last
day of employment at the Law Schoo! would be May 15, 2009.
5
Case 17-38, Document 02/01/2017, 1961823, Page441of487
22. On November 19, 2008, the United University Profe.ssions of the New York State
United Teachers (UUP/NYSUT) filed an improper practice charge agai11st SUNY at the Public
Employment Relations Board, alleging that Plaintiffs termination was in retaliation for, among
other things, the UUPINYSUT's attempt to obtain a Mme-clearing e-mail to the faculty to dispel
the stigma of the defamatory rumors spread by then-Dean Mutua and the Defondant.
23. At a PERB pre-hearing conference held ju Albany in February of2009, the
UUPfNYSUT unsuccessfully attempted to persuade STJNY (represented by the Governor's
Office of Employee Relations) to disavow this defamation and replace it with a name-clearing
message so that Plaintiff would be at liberty to pursue his career elsewhere without the stigma of
the defamation.
24. On March 23, 2012, Plaintiff tiled suit against Makau W. Mutua in the United States
Court for the Western District of New York, seeking relief for violation of his Fourteenth
Amendment right to due process, under 42 U.S.C. 1983.
25. At the mediation held under the mandatory ADR plan of the Westem District on
March l, 2013, Plaintiff once again asked for the name-clearing message in partial settlement of
his claims. Plaintiff has never received a retraction, name-clearing, employment reference, or
apology in any form from anyone in the Law School administration, including the Defendant.
26. On September 22, 2014, four days before the allegations ofthen-Dean Mutua's
pe1:ju1y were published on the front page of the Buffalo News, the University announced that he
was "stepping down" from the Dean's Office. He was replaced, as of December 20, 2014, by the
Defendant as Interim Dean.
0000440
487
27. On March 5, 20 l. 5, Plaintiff sent an e-mail message to the faculty reminding it
that former-Dean Mutua, in his PERB testimony, on Man.;b 31, 2010, had fabricated a crippling
defamation by embellishing a news story about an on-campus shooting in a faculty meeting, six
weeks earlier, at the University of Alabama in Huntsville, and (b) that Plaintiff was suffering
from severe emotional distress because of the recent wave of on-campus violence in the country
and was once again asking for a name-clearing message. Defendant, or someone acting with his
knowledge and on his bcha!t~ repmi.ed this e-mail to the State University Police as an imminent
and ongoing threa.t to publ.ic safety. The State University Police responded on March 8, 2015 by
contacting the Plaintiff at home, 450 miles away in Saint James, New York. The investigating
officer reported back to the Police Department that there was no ongoing or imminent threat
presented by the e-mail message and no further action was taken.
28. On October l, 2015, the day of the Umpqua Community College tragedy, Plaintiff
sent another 1nessage i.o the faculty slating how devastating it was to have his name associated
with such heinous crimes against humanity and asking for the faculty's sympathy and support.
29. The Defendant or an agent of the Dean's Office acting with his knowledge and on his
behalf responded by filing yet another police report that had no basis in any remotely possible
incident. On October 2, 20! 5, a State University Police officer again interviewed the Plaintiff by
telephone, on a Friday evening after 7:00 PM, and determined that the report from the Dean's
Office was once false.
30. The State University Police ,.,,.,,,,..,"''""r as a result of the Plaintiff on
these two occasions, has records in its po.sse~ss1ton that reflect the facts:
Plaintiffha:; since May at the extreme eastern end ofN ew York
which is 450 miles away, and has not been on-campus since that
7
(b) he does not have any police or mental heaitb record;
the underlying dispute is the subject of an ongoing litigation in foderaf district court;
the Plaintiff does not own a registered firearm;
(e) a similar false report from the same source had been ilwcstigated in March, and;
(f) no police response was warranted then or now.
31. On October 4, 2015, the Plaintiff sent a message through the State University Police
website asking Police Chief Gerald Schoenle to investigate the allegations and clear his name,
from the public safety perspective, of tile stigma caused by the false report and the underlying
seven and a half year old defamation. Chief Schoenle did not respond.
32. On Ocloher 9, 2015 Interim Dean Gardner sent the following message to the Law
School faculty (see Ex. B) with !wo attached digital photographs.
"Eadier this week, pursuant to the State Education Law, the University at Buffalo issued
an order declaring Jeffrey Malkan persona non. grata and barring him from campus.
Following this order, any appearance by Mr. Malkan on any UB property wiU subject
him to immediate arrest and possible prosecution for criminal trespass,. .. Mr. Malkan [in
his October l e-mail. message] teforrcd to mass shootings on other university campuses
including, most recently, tl1e tragedy earlier this month at Umpqua Community College
in Oregon.... [A]n Investigator from the University Police
telephoned Mr. Malkan at his home downstate t..0 assess whether he poses a threat to
anyone on this campus ..
present. pose an irnmediate and active threat. with the safety of its
employees its paramount concern, and to address the considerable stress and that
00004~1
17-38, Document 22, 02/01/2017, 1961823, Page444 of 487
these e-mail communications have caused to their recipients, the University has deemed
it prudent to take the precaution of barring Mr. Malkan from campus. Accordingly, if
you should see Mr. Malkan on any UB campus at any time, you are requested
immediately to notify UPD (645-2222) or call 911. For those of you who did not know
him, a pho1:n of Mr. Malkan is attached for your reference. Pl.ease do not hesitate to
contact me or Dean LaDelfa if you have any que&tions or concerns. The safety of each
and every one of you is my number one priority."
Th]s message stated directly and by innuendo that Phtin1iffpresented an imminent threat to the
campus and warranted an order subjecting him to immediate arrest and possible prosecution.
33. Plaintiffs messages, to this day, are conveyed through the campus e-mail system to
the addressees on the faculty, even though the e-mail system is not a public forum, because (a)
faculty members in the Law School have a First Amendment right to receive and consider them,
(b) they do not represent a legally cognizable threat to the public safety or to the personal
secuiity ofany individual, and (c) they arc read or deleted at the discretion of their recipients.
34. The next moming, October I 0, 2015, the Plaintiff received notice by certified letter
from Barbara Ricotta, Associate Vice President for Student Affairs, copied to Police Chief
Schoenle, that he had been declared persona non gratz:~ and would be arrested on-sight if seen on
campus. See Ex. B.
35. Reports of this police action, based on the Defendant's false and defamatory
allegations against the Plainti~ were subsequently published in the print and online media.
(a) The report was published in the UB Spectrum on October 15, 2015.
(b) The report was published in the Buffalo News on October 18, 2015.
9
487
(c) The report was published on the legal news website Above the Law on October 19,
2015.
36. Defendant is aware that his own slanders and libels, dating from Febmary 25, 2008,
and published to the faculty and staff on October 9, 2015, are the basis of this stigmatizing action
the State University Police and the ensuing media coverage of it, and are the only cause of
any "stress and anxiety" that anyone may be suffering,
3 7. Defendant knows that his defamation of October 9, 2015, occurred in the context of a
pending Rule l l motion against fonner-Dean Mutua for perjury and obstruction ofjustice,
together witb a Grievance Committee petition, seeking sanctions and disbarment, filed by eleven
members of the faculty and pending before disciplinary authorities in the Appellate Division.
38. The defamation was published by the Defendant for the purpose of discrediting the
Plaintiff and enhancing the Defendant's tenuous hold on tbe Dean's Office.
AS AND J<OR A FIRST CAUSE OF ACTION
(Defamation and Libel Per Se)
39. The Plaintiff hereby repcat1; and alleges each and every allegation in paragraphs 1
through 38, inclusive, as if fully set forth herein.
40. The Defendant either published, or caused to be pubfahcd, defamatory statements
about the Plaintiff. These defamatory statements included the following:
(a) a false assel'tion that the Plaintiffhad threatened mass violence upon members ofthe
and administration of the Law
a false assertion that the Plaintiff was and
10
000044
(c) a false assertion that the safety and security of the University's employees and
students were endangered by the Plaintiff;
(d) a false assertion that the Defendant was obliged to take "prudent" measures to protect
the safety and security of the Law School's employees and students, and;
(e) a provocative and inflammatory request, with mug shots in the form of digital photos
provided for identification, for members of the Law School community, regardless of
whether they had ever before seen the Plaintift~ to contact the State University Police
immediately upon any sighti11g of him in the vicinity of the campus.
41. Defendant published this defamation in an e-mail message sent to the Law School
faculty, staff: and administration on October 9, 2015, which was the most recent of a series of
slanders and libels repeated by the Defendant since February 25, 2008.
42. Defendant made these defamatory statements in an attempt to leverage the
nationwide vigilance on college campuses about tragedies that have occurred throughout the
United States over the past decade to his own career advantage as Interim Dean, anc~ further, itt
pure malice, to satisfy his own grudge against the Plaintiff, which dates back to April of 2006,
when he failed in his attempt to block the Plaintiff's promotion and tenure.
43. These false statements were motivated by inalice, intended to destroy Plaintifrs
reputation and credibility, and had no basis in Plaintiff's employment records at the University,
except those fabricated by Defendant himself, or in any state-accessible police or court records.
44. The only source for the public alarm ning by the Defendant on October 9, 2015, was
the pattern of defamations maliciously spread by the Defendant himself over the past seven and a
half years.
11
. . . UUOff4~n

45. The Defendant's false statements were made in violation ofa criminal statute, N.Y.
Penal Law 240.50, which provides that "[a] person is guilty of falsely reporting an incident in
the third degree when, knowing i:he information reported, conveyed or circulated to be false or
basel.ess, he [i]nitiates or circulates a false report or warning of an alleged occmrence or
impending occurrence of a crime, catastrophe or emergency under circumstances in which it is
not unlikely that public alann or inconvenience will result." The statute sets the stai1dard of care
to which the Defendant must be held accountable.
46. The Defendant knew that his provocative and inflammatory message to the faculty
and staff: on October 9, 2015, was likely to result in public alarm in the fonn of"considerable
stress and anxiety ... to [its] recipient..<;" and itselfrepresented a public alarm.
47. (a) By falsely con:firmfog the veracity of the defamations made by former-Dean
Makau W. Mutua, (b) by failing to correct them when he had a duty to do so, and {c) hy
repeating and further publicizing these defamations up to and including October 9, 2015, the
Defendant further defamed the Plaintiff.
(i) Defendant knew from his own personal knowledge that the defamations were false.
(ii) Defendant knew that the defamations had been falsely sworn in court proceedings.
(iii) Defendant knew that the defamations violated the New York Rules of Professional
Conduct and the University's Faculty Code of Conduct.
(d) Defendant knew thal the defamations were intended to inflict substantial material
han!ship, loss of dignity and social standing, and emotional distress on the Plaintiff.
48. The defamations alleged in this Complaint were libelous per se because they impugn
the Plaintiffs professional fitness and moral character by charging him with intent to engage in
12
00004.Jl
17-38, Document 22, 02/01/2017, 1961823, Page448 of 487

criminal acts of violence against his faculty colleagues. They have indelibly stained his
reputation and effectively prevent him from ever again being permitted to teach on a cam1ms.
49. As a result of the Defendant's defamations, the Plaintiff has suffered from loss of
standing in the community, loss of his vocation md livelihood, loss of his dignity, public
disgrace, and severe emotional distress.
AS AND FOR A SECOND CAUSE OF ACTION
(Intentional Infliction of Emotional Distress)
50. The Plalntiffheteby repeats and aUeges each and every allegation in paragraphs 1
through 49, inclusive, as if fully set forth herein.
51. The Defendant engaged in conduct that is so extreme and outrageous that it would
exceed the bounds of decency in any civilized society.
52. The defamations alieged in this Complaint were intended to cause the Plaintiff to
suffer severe and lasting emotional distress.
53. As a direct and proximate cause of the Defendant's conduct, the Plaintiff has
st1ffered, and continues to suffer, severe emotional distress for which he is entitled to an award of
damages.
54. The Defendant's extreme and outrageous conduct was intentional, premeditated,
calculated, willful, and wanton, entitling the Plaintiff to an award of punitive damages.
WHEREFORE the Plaintiff demands judgment against the Defendant awarding the
following relief:
A. An award of damages to be determined at trial plus prejudgment interest, to
compensate the Plaintiff for his monetary and economic harm;

13
0000452
B. An award of damages to be determined at trial tel compensate the Plaintiff for
irreparable hann to his reputation, good name, and social standing, and for the loss of his
profession, vocation, and career;
C. An award of damages to'be determined at trial. to compensate the Plaintiff for his
severe emotional distress, hardship, and mental anguish;
D. An award of punitive damages;
E. An award of the costs incurred by the Plaintiff hi this litigation as well as his
reasonable attorneys' fees to the fullest extent permitted by the law;
F. Such other and further relief as the Court deems just and proper.
JURYTRTAL
Plaintiff demands a trial by jury on all issues of fa.ct and damages stated herein.
Dated: Saint James, New York

October 21, 2015
Respectfully submitted,
Jeffiey Malkan
Plaintiff pro se
12 Valleywood Ct. W
Saint James, New York 11780
(63 l) 862-6668
14
487
EXHIBIT A
MEMORANDUM OF JAMES A. GARDNER, FEBRUARY 25, 2008

Docun1ent 487
~-~la~~
Th:e.Btate Onwcrstt;y afNew Ynfk
RE:
DATE:
E-v~lmUioo of J~ 1Mmkm'sP~rl'o~ce. as
D:ireizrot of th~J.,egru Research and Wcifutg Pro~m
'f'nank you fm asking for rr:ry: evaluation of Jeft'Ma1hn '$ ~or:mance as uf Legat
Rl:".seattrh and Writ,it:Jg (LR W), fu rayjudgment, Jeff's perl'otll:lan<:ie fa11s welt below th-e mini:rnai
stand~.rtts . te<~!.tired of the hofr111>r of the pmr.itioo.
rnejob of~tor (;O..'ltiilils two oor~ com..pOn!llll:ts.. the .l)iretW' teach~ one
legal research aud writing. In UJ:ls resp'Cet, the Ditectar' sjol> fa iio different from that .of any
instructors who s~e under him. Second, the bi.rector is responsible for directing the Legal. Rese&!'Ch
Writiug program. This fmiction., at .a minimum, includes designing the c!J:trlc.111mn; ensurit1g its
implementation by th instrlits; moiU.toring, supetvl~mg, aml evafoating the work Gf tb.e Jnsm1ctm-s;
cootdinating. the o~rati,011 of .the I.,.RW progrru:n with other aspects of qu."rj.,ctll>'lt pl1mn.h1g and
instnictl.on; maitttaiul.ug the visibility of t4e progi:aro wi.thiti .imd qtslde the law keeping abreast
nf developments in the fie1d ofreitearuh ima Writing inlrttu~tion; imd integrating new }Jedagogical
developments into rhl". vmc;m-,;,m
So far as lam aware, Jeff has performed tlre first function ar'k.quateJy; be seerrrs to he
consi<lcred to be a tt'~oMhly effective teacher of legal re.search and As to th~
,.,.,,,...,,,,,, howev.er- ~ting the p:r-0grar11- Jeff has ~en a n~show He doesri;(~.f,
to my actuaQy do anything that tnigbt be that:acteriz:ed as direc~ a prograrn. As
can teIJ, there is nu program., Gthet' tha:tl. the
thus been com.pemaijn;g
pei::tormarH::e thruugh
in rhe al'.tl'tched me.rnN~dm11, which l wrot at the dme 10 oppoz~ his i:.ca.!Jix)intr:a.ent
h1rve reviewe-0 it corriplete:l'J
00004b~
Document 487
In the in!I..'l'Vl.':Ilinglwo yoom,1 have neither ~y.;.>bserved .nor heard second..J:nmrl

anything to cbange my views, and m~oo lhs.ve !ut!rid Je;."f'i; pmformimce ro consist sUn.p1y of mm:e crf
wne. He Jms no ~re wha!:l!oov.er in: the faw s.chOOf and, so tilt M lean tell, no presence in the
LH W program other than his olassrooru. fnstmciinn ofhis soction. Moreover, recimt dfacu;~sions with
t.fo::: LRW itit<ttv.Cttll"S 1~ me to !;;eli~ve that things .are even worse than I !bought. According fo.fue
instructors, mere simply i$ no LRW program, and Jen therefore directs nolhlng.
Punhennore, evidence recently bl\$ come to ilght of unb11:1an~ and poostoly abusive behavior
by Jeff toward atleast QJJe of the W$tnlCto~ he. supervises, 1 was Md by one ofthe instru()fD~ tha4
upon l?atning !hatbis perlbrrrrance as QIJ:ector would be .!'evibwed, be v~ly dressed down one of
!he instnictors, dtilining. to have been betrayed by tjrem, and said things thafcou1d be consttu.ed as
m
fodicating an intention to sook so.me lci.Ild of retr,iputioo by ml.totMUai.;ing thl.\'m 1
learned late last weektl:ratJeff has, a,..aparenl'.lyfu:rthe fi_tst time, ~led f(> See the Student teacbfag
evaluations qf tlie .LRW mstiuctol'$. ~ this iS sctmethirtg he. ought to have dbnet:outinely, bis r~uest
for !he e:valuatians pndtr presettt.<;:1remmtailces, se:erns ominous.
I l:telieve in consquente that Ui.e la.W school ruin .un.1ver.$ity sltoold examine closely wru:iteviet
options mightbecavailable for dealing 'i'/ith whatis, to me, an im~table situation that signifi:c:a:ndy
imp.airs the ;whii;wement CJfthe law scl.rool' s iflS:troetional goals.

Case 1:12-cv-00236-RJA-HKS Document 108 Filed 02104/16 Page 34 of 46
UNIVERSITY AT BUFFALO LAWSCHOOL
w
Tt)e Unrverslt)' ~. auff'a:ilili .provldft: ae.~ '~citfi wrftten evatuatkm$ to those
revi~wetf ff permiesibl'l 'ii g\ven by the writer; We would appreciate lt if you would
indk:ate. nerow whethflt you are wilnng to f.'l;ikiw your letter of evawatli::in to be reviewed.
Please cheok the appropr:ia:te statement beJow and retum the form wfth. yotir tetter. 1f
yau aQ gqt ratuatf!W fillm,.RWU! bi gult!id ttJ@tvoUWb yourJetter:IQ ge k~pt
cgnfident~al.
Th;ttt:kyau,
Protes~or Meil~n may rt<1t reiad. r:ny l$tter of eval4ation~

Prot~sor ~Iran m;ay re.$d :n1Y :tettei qfev{llua~n if att thforrflatlbo
indicatlng .my ider\titf 1a deleted,
Document 487
EXHIBIT B
1. MESSAGE OF JAMES A. GARDNER, OCTOBER 9, 2015
2. LETTER OF ASSOCIATE VICE~PRESIDENT BARBARA RICOTTA,

OCTOBER 6.., 2015
00004J9
Case 1:12-cv-00236-RJA-HKS Document 108 Filed 02/04116 Page 36 of 46
From: Jim Gardner <.tg_arct@j3iJFi:BLO.EDl,!>

Reply-To: Jim Gardner <ig_ard@~UFFAl,,Qj;Q.!J>
Date: Fri, 9 Oct 2015 21:44:25 +0000
To:
Subject: Jeffrey Malkan
Dear Colleagues:
Earlier this week, pursuant to the State Education Law, the University at Buffalo immed an order
declaring Malkanpersona non grata and barring hin:1 from campus. FoUowing this order, any
appearance by "llfr. Malkan on any UH property will subject him to immediate arrest and possible
p.<<J~CAlH<J'Ll fOf Cfifllll:J.Ul tfCSpa&S.
As you may know, Mr. Malkan over the last several yearn has been the. somce of a si:eady stream of e-
mail messagei; directed to members of this faculty, Law &_,lmol adminisiraton;, University adminl.stnrtors,
University conn~el, and the Office oft.he New York Attorney Genera! (which has represented the Law
School in a series of lawsuit~ brought by Mr. Ma.lka.n). In these messages -- nearly 20() over the last
1welve months alone - Mr. Malkan has rehearsed a variety of grievances against the Law School, the
University, and lawyers in the Attorney General's Office.
ln at least two of these e-mail mt":ssages, Mr. Malkan referred to mass shootings on other university
campuses including, most recently, !.he tnigt:dy ear!\er tbis month at l.Jmpqua Community CoUege in
Oregon. Following each of these references, an Investigator from the Univernhy Police Department
h4s tdcpl1oned r./i!'. Iv1alkan at his home downstate to assess whether he poses a threat to anymu~
on this campus. In each case, the Investigawr has concluded that Mr. Malkan does not at present pose an
!tmrn;diak and active threat.
Nevertheless, with the, of its employees its param()U!lt concern, and to address the coiisi<v~rablc
s(re's and anxiety that tbese e-mai.i eommuntciti.ons have caused to tlu:ir redpients, the
deemed it prudent to tilke the precaution of barring .Mr. M.alkan from campus. Accordingly,
~ce 'Mr. l'Aatkan on any UB campus at any ti rne, you are requested immediately to UPD
or call 9 I I. Fol' those of you who did not know him, a photo of .Mr. Malkan i$ :ittachcd for your reforcncr,.
Please do not hesitate to contad rne. or Dean LaDelfa if you have any qm:st:im1s or concc,>rns, The
of each ami every one of you fa my number one priority.
James A. Gardner
Interim Dean
Bridget and Thomas Black SUNY Distinguished Professor
SUNY Buffalo Law School
The State University of New York
noom 319, O'Brian Ha!!
Buffalcl, NY 14260-1100
Case 17-38, Document 22, 02/01/2017, 1961823, Page456 487

/fi, )/;Ii( (.'H<l'('!'~il!' i>(\'1.l\' )-'111~:
October 6, 2.015
Jeffrey Ma!kan
12 Valleywood Court West
Saint James, NY 11780-1015
Dear Mr. Malkan:
Pursuant to the authority vested by State Education Law, as .des!gnee of the Chief
AdministraUve Officer of the University at Buffafo. I hereby revoke your priVlleges as a visitor to
the campuses of the University. This actlori is based, in pert, on emails you sent on March 5,
2015, and subsequently on October 1 and 5, 2015, to members of the faculty of the University
at Buffalo Law School, the University president. provost and others, comparing the
circumstances surrounding the termination of your employment at the University to two mess
shooting incidents on college campuses and one at an elementary school. These messages
have caused disruption and created a fear of harm among individuals at the University.
Consequently, you are barred from participaUrig in any University acttvity or entering onto or being
in any property owned or operated by the University at Buffalo. This revocation of visitor privileges
will remain in effect until and unresa it is modlfied, in writing, by the University at a future time. If
you are found in violation of these conditions; you stand liable to being charged with Criminal
Trespass under the Penal Law of the S1ate of New York.
Should you have any questions regarding thls letter. or have information which you feel I should
h,;we at this time related to this matter. please communicate wrth me in writing.
You may petition a review of this decision one year from the date of this letter by writing to the
Office of Judicial Affairs, 252 Capen Ha\I, Buffalo, New Yotk 14260.
Barbara J. Ricotta
Associate Vice President
Student Affairs
BJR/tdp
cc: Mr. Gerald Schoenle, Chief of Police

... :~ ~:(, "' . .
0000460
X. Policies of the SUNY Board of Trustees (excerpts)
0000461
State University of New York
Policies of the
Board of Trustees
June 2014
THE STATE UNIVERSITY OF NEW YORK
H. Carl McCall
Chairman
Nancy L. Zimpher
Chanceltor
Joel Pierre-Louis
Secretary of the University
A full listing of Members of the Board of Trustees and Chancellor's Cabinet is
available at www.suny.edu
Information regarding Policies of the Board of Trustees is available at:
The State University of New York

State University Plaza
Office of the Secretary and the Board of Trustees
Albany, New York 12246
518-320-1157 trustees@suny.edu
00004uJ
TABLE OF CONTENTS
Article I: Construction and Application Page
1. Construction ......................................................................................................................... 13
2. Application ........................................................................................................................... 13
~ Article If: DEFINITIONS
l.Terms ....................................................................................................................................... 13
Article Ill: [RESERVED]

~
Article IV: UNIVERSITY OFFICERS
~
' Title A. Chancellor
1. Appointment. .......................................................................................................................... 15
2. Chief Executive Officer........................................................................................................... 15
3. Assignment of Powers and Duties ......................................................................................... 15
4. Committees .......................................................................................................................... 16
5. Annual Report ....................................................................................................................... 16
Title B. Secretary of the State University

1. Appointment ......................................................................................................................... 16
2. Responsibilities ...................................................................................................................... 16
Title C. Other Senior Officers

1. Appolntment.......................................................................................................................... 16
2. Responsibilities ....................................................................................................................... 16
Title D. Other Officers and Professional Staff

1. Designation ........................................................................................................................... 17
2. Appointment ......................................................................................................................... 17
3. Responsibilities ......................................................................................................................17
4. Appointment of Other Professional Staff ............................................................................ .. 17
""'!!'\!~~~~!!!!l!l!!~!\!!!\!!!!!~!!!l!!!!i!!J!\!!!!~!!!!!l!!!!!IJ!llll!~~~~!!!!J!!!llJ!~~!!!!!!l!!!~~!!!!!!!'!'!~~~!!!!!J!!!!!!~~~~
W11c:tes"or' t.l1"e''eoara o't'frust:ee:s''"""""''''"'"'""'''""'"'"'''''""'''""o"'"--"'"'""'""""'''"''"'"'''"'''"--..--"'''' "".,,.,,,,,,.,,,1>age''::t. '.
Article V: [RESERVED]
Article VI: UNIVERSITY FACULTY
1. Composition ...........................................................................................................................17
2. Voting Faculty .......................................................................................................................17
3. Responsibilities .....................................................................................................................17
Article VII: UNIVERSITY FACULTY SENATE
Title A. Establishment and Purposes

1. Name ....................................................................................................................................18
2. Purposes ...............................................................................................................................18
Title B. Membership
1. Composition ..........................................................................................................................18
2. Election and Appointment ....................................................................................................18
3. Terms ...................................................................................................................................19 Ii
4. Reelection .............................................................................................................................19
5. Vacandes .............................................................................................................................19
Title C. Office rs
1. President of the Senate .........................................................................................................19
2. Vice-President/Secretary ...................................................................................................... 20
3. Vacancies .............................................................................................................................20
Title D. Organization
1. Meetings ...............................................................................................................................20
2. Committees ..........................................................................................................................20
Title E. Bylaws
1. Adoption ...............................................................................................................................20
Title F. Amendments
1. Procedure .............................................................................................................................21
P'o1 ici e'S':'o:t"'ffie''soara-of''trus'fee:S'"''"'""'"'"'"". .,,,,,.,,.,"'*"'"'"''".,....,,".'"''"''""'

. ........
" ..... T .. ,.,..... .,.,,J:<.<O<,<:.-;..Op<.''a>g"~
",..........................
> . .
:e4 .:,',
0000455
Article VIII: COUNCILS
1. Establishment ......................................................................................................................21
3. Attendance of Faculty and Alumni .......................................................................................21
Article IX: COLLEGE OFFICERS AND ORGANIZATIONS
Title A. Chief Administrative Officer

1.Appointment ........................................................................................................................22
2. Responsibifities .....................................................................................................................22
3. Handbook .............................................................................................................................23
4. Annual Reports .....................................................................................................................23
Title B. College Administrative Officers

1. Designation ..........................................................................................................................23
2. Appointment ........................................................................................................................23
3. Acting Appointments ............................................................................................................23
~- ~ervice ..::.::--...............................................................................................................24 111r.
5. Respons1bfltties .................................................................................................................... 24
Title C. Chairs of Departments and Divisions

1. Designation ..........................................................................................................................24
2. Terms .................................................................................................................................. 24
3. Termination of Appointment as Chair................................................................................... 24
Title D. College Administrative Organization

1. Plan ......................................................................................................................................24
Title E. College Administrative Conference

1. Composition .........................................................................................................................25
2. Purpose ................................................................................................................................25
3. Meetings ..............................................................................................................................25
'
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00004bJ
Article X: COLLEGE FACULTY
1. Composition ..........................................................................................................................25
2. Chair and Presiding Officer ................................................................................................... 25
3. Voting Faculty .......................................................................................................................25
4. Responsibility ........................................................................................................................26
5. Bylaws ...................................................................................................................................26
Article XI: APPOINTMENT OF EMPLOYEES
Title A. Procedure
1. Procedure ...............................................................................................................................26
Title B. Continuing Appointment

1. Definition ...............................................................................................................................27
2. Method of Appointment. ........................................................................................................27
3. Eligibility ................................................................................................................................27
~ Title C. Permanent Appointment

1. Definition ............................................................................................................................... 28
2. Method of Appointment .................... ....................................................................................29
3. Initial Appointment ................................................................................................................ 29 -
4. Eligibility for Initial Permanent Appointment ........................................................................ 29 '
5. Change in Professional Title ................................................................................................... 31 ;
Title D. Term Appointment

1. Definition ............................................................................................................................... 33
2. Eligibility ................................................................................................................................33
3. Method of Appointment ........................................................................................................ 33
4. Renewal of Term ....................................................................................................................33
5. Notice..................................................................................................................................... 34
6. Other Appointments ..............................................................................................................35 ,
7. Service Not Credited .............................................................................................................. 43
00004br
Title E. Probationary Appointment

1. Definition .................................................................................., ............................................ 43
2. Method of Appointment ........................................................................................................43
Title F. Temporary Appointment

1. Definition ...............................................................................................................................43
2. Eligibility ................................................................................................................................43
3. Method of Appointment ........................................................................................................43
Title G. Distinguished and University Professors and Distinguished Librarians

1. Appointment ........................................................................................................................44
Title H. Appointment Year

1. Term of Obligation ................................................................................................................44
2. Professional Obligation .........................................................................................................44
3. Appointment Year .................................................................................................................44
4. Other Employment ................................................................................................................44
Title I. Academic Freedom

1. Academic Freedom ................................................................................................................45
Title J. Patents, Inventions and Copyright Policy

1. Patents and Inventions Policy ................................................................................................45
2. Copyright Policy ....................................................................................................................49
Appendix A to Article XI: Professional Titles ................................................................................50 !
Appendix B to Article XI: Athletic Titles .......................................................................................51
Appendix C to Article XI: Fundraising Titles .................................................................................53
000040<:)
Article XII: EVALUATION AND PROMOTION Of ACADEMIC ANO PROFESSIONAL

EMPLOYEES
Title A. Evaluation of Academic Employees

1. Policy ....................................................................................................................................53
2. Purpose...... ...........................................................................................................................53
3. Applicability ..........................................................................................................................53
4. Criteria ..................................................................................................................................53
Title B. Promotion of Academic Employees

1. Procedure ..............................................................................................................................54
2. Criteria ................................................................................................................................... 54
3. Length of Service ...................................................................................................................55
Title C. Evaluation and Promotion of Professional Employees

1. Policy .....................................................................................................................................55
2. Definitions .............................................................................................................................55
3. Promotion ............................................................................................................................56
4. Evaluation .............................................................................................................................56
5. Criteria ..................................................................................................................................56
6. Action by Chief Administrative Officer ..................................................................................57
Article XIII: LEAVE OF ABSENCE FOR EMPLOYEES IN THE PROFESSIONAL SERVICE
1. Definitions .............................................................................................................................57
~
Title A. Vacation Leave: Calendar Year Employees and College Year Employees
1. Accrual of Vacation Leave .....................................................................................................58
2. Maximum Accumulation ......................................................................................................61
3. Authorization for Use .............................................................................................................62
4. Charges .................................................................................................................................62
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Document 487
Tltle B. Vacation Leave: Academic Year Employees

1. Accrual of Vacation Credit ...................................................... '" ........................................ ,. ... 62
Title C. Sick Leave

L Accrual ...................................................................................................................................63
2. Other Sick leave Credits ........................................................................................................ 65
3. Maximum Accumulation ......................................................................................................65
4. Authorization for Use ............................................................................................................65
5. Additional Sick Leave ............................................................................. ,. .............................. 67
6. Charges ..................................................................................................................................67
Title D. Holiday Leave

1. Holiday Leave ........................................................................................................................ 68
Title E. Sabbatical leave

1. Policy ......................................................................................................................................69
2. Purpose .................................................................................................................................. 69
3. Eligibility ................................................................................................................................ 69
4. Terms and Conditions ........................................................................................................... 69
5. Applications .................. . ..........................................................................................69
6. Approval ................................................................................................................................ 70
7. l.eave Credits .........................................................................................................................70
Title F. Other Leaves

1. Approval ................................................................................................................................70
2. Application ............................................................................................................................71
3. L.eave Credits ......................................................................................................................... 71
Title G. Disability Leave

1. Disability Leave ......................................................................................................................71
Title H. Study leaves for the Chancellor and Chief Adminlstratlve Officers
1. ThirdYearofServfce ........................... ,. ......................................................................... ....... 73
2. Five Years oj Service .............................................................................................................73
ees
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Document 7,
Title 1. Attendance Records

1. Attendance Records ..............................................................................................................73
Title J. Other Absences

1. Unauthorized Absence ..........................................................................................................74
2. Absence: Extraordinary Circumstances ................................................................................ 74
Title K. Limitations
1. Term Appointments ...............................................................................................................74
Artide XIV: TERMINATIONS OF SERVICE
Title A. Termination at Will

1. Temporary Appointments ......................................................................................................75
Title B. Automatic Termination

1. Term Appointments ...............................................................................................................75
Title C. Termination for Age or for Physical or Mental Incapacity

1. Retire.rrJl1t ~"~ .. ,~~~" .. ~ . ~~~~s~~~75
Article XV: RETIREMENT
Title A. Membership in Retirement Systems

1. Requirement ................................................................... " ..................................................... 75
Title B. Voluntary Retirement

1. Notice ....................................................................................................................................75
Title C. Retirement for Physical or Mental Incapacity

1. Policy .....................................................................................................................................76
Title D. Privileges After Retirement

1. Emeritus Status .....................................................................................................................76
2. . .. ,. .......................................................................................................................... 76
'rustees ge 10
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Artide XVI: PLAN FOR THE MANAGEMENT OF CLINICAi.. PRACTICE INCOME
1. Policy ................................................................................................................................ " .. 76

2. Development of Plan ............................................................................................................ 76
3. lrnplementation of Plan .........................................................................................................77
4. Plan Requirements ................................................................................................................ 77
Article XVII: STUDENT ASSEMBLY
Title A. Establishment and Purpose

1. Name .....................................................................................................................................85
2. Purpose ..................................................................................................................................85
Title B. Membership in the Assembly

1. Membership .......................................................................................................................... 85
2. Member Institutions ............................................................................................................. 85
3. Representatives from Member lnstitutions ............................................................................85
4. Organized Student Groups ....................................................................................................86
5. Eligibility ................................................................................................................................ 87
6., Represet1tatives ta Act in Person ~ .......... ~u~~~u~ ...... ~ .... u .. ~uu~~~ .. ~~"~''""'"'"087
Title C. Officers
1. Officers .................................................................................................................................. 88
2. Duties ...................................................................................................................................88
3. Election of Officers .......................... ., .................................................................................... 89
4. Eligibility to Serve ................................................................................................................... 89
5. Terms of Office ............................................................................... ., ..................................... 89
6. Officer Vacancies ................................................................................................................... 89
Title D. Organization
1. Meeting ........................... "" ...................................................................................................89
2. Agenda ..................................................................................................................................90
3. Meeting Notification ............................................................................................................. 90
4. Executive Committee ............................................................................................................ 90
5. Other Comn1ittees .................................................................................................................91
000041~
Document
6. Quorums ................................................................................................................................91
7. Rules of Procedure .................................................................................................................91
Title E. Bylaws of the Student Assembly

1. Bylaws ....................................................................................................................................92
Title F. Amendments
1. Amendments .............. r n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,..92
Article XVIII: UNIVERSITY COUNCIL OF PRESIDENTS
Title A. Establishment and Purpose

1. Name ................................ ,. ...................................................................................................92
2. Purpose ..................................................................................................................................92
Title B. Membership
1. Composition ........................... ., ..............................................................................................93
2. Eligibility ................................................................................................................................93
3. Selection ................................................................................................................................. 93
4. Terms~--~~" ,.. ,.... ~" '"~~~.-~---~~--~---~~~~~$~ ......... ~~~~~~~ .. ~ .. ~93
Title C. Meetings
1. Meetings ................................................................................................................................ 93
Article XIX: APPLICABILITY
Title A. Applicability of Policies of the Boa rd of Trustees

to Employees in Negotiating Units
1. AD!JllCC.fDfl/i[V.
Articles I/I, V, and VIII were originally reserved by the Board of Trustees to set forth their policies on
University Responsibiiity and Organization; University Conferences and Committees; and Councils~
respectively. Article Vfll was modified IJ'Jith content by the Board in :1993; articles Iii and V continue to be
reserved.
Policies :rustees
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487
Policies of the Board of Trustees*
1. Construction. These policies shall constitute rules of the Board of Trustees for the
government of the University and the institutions therein regulating the matters contained
herein as authorized by law. Nothing in these Policies contained shall be construed to
restrict the power of the Board of Trustees from time to time to alter, amend, revise or
repeal the provisions hereof in whole or in part.
2. Application. These policies shall apply only to the State-operated colleges of the
University, except where the community or contract colleges are specifically included.
ARTICLE H: DEFINITIONS
L Terms. As used in these policies, unless otherwise specified, the foliowing terms shall
mean:
{a) "University." State University of New York.
(b) "Boa rd of Trustees." The Board of Trustees of State University of new York.
!c) "Chancellor." The Chancellor of State University of New York.
(d) "College." A State-operated institution of State University of New York.
(e} "Contract College." A statutory or contract college of State University of New York.
(f) "Community College." A locally-sponsored, two-year college established under Article

126 of the Education Law.
"Council." A council for a college as provided for by Section 356 of the Education Law
0000 4 r~
Docurnent 487
and the Board of Trustees of the State University College of Environmentai Science and
Forestry as pro-vided for by Section 6003 of the Education Law.
(h) "Chief administrative officer." The head of a college or contract college, as the case
may be, whether called president, dean, provost, director or otherwise.
(i) "Academlc staff." The staff comprised of those persons having academic rank or
qualified academic rank.
m II Academic rank." Rank held by those members of the professional staff having the
titles of professor, associate professor, assistant professor, instructor, and assistant

instructor, including geographic ful!-time faculty members having such titles, and rank
held by members of the professional staff having the titles of librarian, associate librarian,
senior assistant iibrarian, and assistant iibrarian. A geographic full-time faculty member is
a person serving on the faculty of a medical center who is not employed on a fulHime
basis for the purpose of fixing compensation payable by the State but all of whose
professional services and activities are conducted at the medical center or its affiliated
hospitals and are available to the State on a full-time basis for clinical and instructional
purposes.
(k) "Qualified academic rank." Rank held by those members of the academic staff having
titles of lecturer, or titles of academic rank preceded by the designations "clinical" or
"visiting" or other similar designations.
(I) "Professional employee." Professional employees shall mean an employee in the

Professional Services Negotiating Unit, other than an employee with academic or
qualified academic rank.
(m) "Academic employee." Academic employee shall mean an employee in the

Professional Services Negotiating Unit with academic or qualified academic rank.
"Professional staff." All persons occupying positions designated by the Chancellor as

being in the unclassified service.
"Professional title." Professional title shall mean the title of a in the

Professional Services Negotiating Unit, other than a position of academic or qualified
00004'7;;,
TITLE A. CHIEF ADMINISTRATIVE OFFICER
1. Appointment.
(a) There shall be a ch!ef administrative officer of each state-operated institution of

the university who shall be designated pres'1dent. Presidents shall be appointed by
the Board of Trustees after receipt of recommendations of the campus councils (or
of the Trustees of the College of Environmental Science and Forestry) and of the
Chancellor, and shall serve at the pleasure of the Board of Trustees. Before making
its recommendations the campus council shall consult with a presidential search
committee designated for such purposes by the chair of the council and comprised
of members of the various campus constituencies, including faculty, students,
professional employees, administration, alumni and members of the council.
Reflecting the significance of the role that faculty are expected to play in academic
governance, the faculty should predominate among the non-council constituencies
on the search committee. The Chancellor, or designated representative, before
making recommendations to the Trustees, shall consult with the chair or other
designated representative of the college councH.
(b} At any time during the period of appointment, the Board of Trustees and the
Chancellor may evaluate the services of the chief administrative officer.
{c) A chief administrative officer, upon appointment, shall be appointed by the

ChanceHor to the faculty of the University in a position of academic rank with
continuing appointment.
2. Responsibilities. The chief administrative officer of each college shall be responsible to

the Chancellor and the Board of Trustees for, and shall administer, the college for which he
or she serves, and shall promote its development and effectiveness. The chief administrative
officer shall supervise the members of the professional and non-academic staff of such
college and shall appoint or recommend to the Chancellor and the Board of Trustees persons
for appointment as members of the professional staff of the college. The chief administrative
officer shall prepare and recommend the annual budget requests of the college and shall
and make recommendations to the Chancellor and the Board of Trustees and the
Docurnent
college council concerning the operation, plans and development of the college. The chief
administrative officer shall make all appointments of employees to positions at the college in
the classified service of the civil service of the State.
3. Handbook. The chief administrative officer of each college shall be responsible for the
preparation and publication of a college handbook, subject to the approval of the Chancellor.
Such handbook should include an administrative organization chart, a statement of
administrative responsibilities, faculty bylaws, local polides and such other information
concerning the college as he or she may deem advisable and shall be made available to all
members of the academic staff of the college.
4. Annual Reports. On or before September 1 of each year the chief administrative officer
of each college shall make an annual report to the Board of Trustees, the Chancellor, the
coiiege council and the faculty for the previous year, concerning the affairs of the college and
recommendations with respect thereto.
TITLE B. COLLEGE ADMINSTRATIVE OFFICERS
1. Designation. There shall be such coliege administrative officers for each college as may
be determined by the chief administrative officer of the college with the approval of the
Chancellor.
2. Appointment. Appointments of all college administrative officers and professional staff

not in a negotiating unit established pursuant to Article 14 of the Civil Service Law shall be
made by the chief administrative officer of the college; such appointments shall be reported
to the Chancellor. Appointment of academic officers such as vice-president for academic
affairs, academic deans and others with similar responsibilities shall be made after
consultation with the faculty.
3. Acting Appointments. Interim appointments on an acting basis of college administrat'ive

officers and professional staff not in a negotiating unit established pursuant to Article 14 of
the Civil Service Law, other than chief administrative officer, shall be made in accordance
with Section 2 above.
0000417
74 487
4. Service. Persons appointed pursuant to this Title shall serve at the pleasure of the
appointing officer or body.
5. Responsibilities. College administrative officers shall have such powers, duties and
responsibliittes as may be assigned by the chief administrative officer of the college.
TITLE C. CHAIRS OF DEPARTMENTS AND DIVISIONS
1. Designation. The members of the academic staff of each college in charge of the
departments or divisions of such college shall be designated as chairs of such departments or
divisions, which designations shall be in addition to their academic rank.
2. Terms. Chairs of departments or divisions of colleges shall be designated and

re-designated by the coliege chief administrative officer after consultation with appropriate
faculty including the department or division concerned. Such designation shall be for any
period up to three years, and renewable; provided, however, that the college chief
administrative officer may relieve a designee of duties as chair at any time.
3. Termination of Appointment as Chair. If the chair of a department or division of a college

is reUeved of duties as chair,. that academ~c staff member shall retain such ilghts and
privileges as he or she may have by virtue of academic rank.
4. Responsibilities. The chairs of departments and divisions of a college shall, in

consultation with their respective faculties, be responsible to the chief administrative officer
of the college for the supervision of the personnel and educational program of the
departments or divisions for which they serve. They shall have such other powers, duties and
responsibilities as may be assigned by the chief administrative officer of the college.
TITLED. COLLEGE ADMINISTRATIVE ORGANIZATION
1. Plan. The chief administrative officer of each college shaH prepare an organization chart
of the college and an accompanying description of the powers, duties and responsibilities of
the administrative officers and chairs of the departments and divisions of the college, subject
to the approval of the Chancellor,
00004/u
TITLE E. COLLEGE ADMINISTRATIVE CONFERENCE
1. Composition. There shall be a college administrative conference of each college which

shall be com prised of the Chancellor, the chief administrative officer of the college and such
other persons as may be designated by the chief administrative officer of the college. The
Chanceiior, or if absent, the chief administrative officer of the college, shall be the presiding
officer of each college administrative conference.
2. Purpose. Each college administrative conference shall act as an advisory and consultative
body to the chief administrative officer of the college and it shall consider such matters as
may be presented to it by its presiding officer.
3. Meetings. Each college administrative conference shall meet at the call of the chief
administrative officer of the co!lege.
1. Composition. The faculty of each college shall be comprised of the Chancellor, the chief
administrative officer and other members of the voting faculty of the college, other
members of the academic staff of the co liege. and such nonvoting administrative officers and
professional staff as may be designated by the faculty bylaws of the college.
2. Chair and Presiding Officer. The chief administrative officer of the college shall be the
chair of the faculty of each college. Each coUege faculty may provide for the selection of its
presiding officer, in a manner to be specified in college faculty bylaws. Both the Chancellor
and the chief administrative officer shal! be empowered to call meetings of the college
faculty or the govi~rnance body of that faculty and of lts executive committee. The agendum
of each meeting of these bodies shall provide, as a priority order of business, an opportunity
for both the Chancellor and chief administrative officer to present their reports.
3, Voting Faculty. The voting faculty of each college shall be composed of:
(a} The Chancellor and the chief administrative officer of the college; and
00004'/J
{b) Members of the academic staff of the college having academic rank and term or
continuing appointments; and
(cl Such other officers of administration and staff members of the college as may be
specified by the faculty bylaws of the college.
4. Responsibility. The faculty of each college shall have the obligation to participate
slgnificantly in the initiation, development and implementation of the educational program.
5. Bylaws.
(a) The faculty of each college shall prepare and adopt bylaws which shall contain:
(1) Provisions for committees and their responsibilities; (2) Procedures for the
calling and conduct of faculty meetings and elections; and (3) Provisions for such
other matters of organization and procedure as may be necessary for the
performance of their responsibilities.
{b) Bylaws shall be consistent with and subject to the Policies of the Board of
Trustees of State University of New York, the laws of the State of New York, and the
provisions of agreements between the State of New York, and the certified
employee organization established pursuant to Article 14 of the Civil Service Law.
Provisions of bylaws concerning consultation with the faculty shall be subject to the
approval of the chief administrative officer of the college. All actions under bylaws
shall be advisory upon the Chancellor and the chief administrative officer of the
college.
ARTICtE XI: APPOINTMENT OF EMPLOYEES

TITLE A. PROCEDURE
1. Procedure. The chief administrative officer of a college, after seeking consultation, may
appoint, reappoint, or recommend to the Chancellor for appointment or reappointment, as
may be appropriate to the nature of appointment provided for herein, such persons as are,
in the chief administrative officer's judgment, best qualified. Such appointments shall be
consistent with the operating requirements of the college. For purposes of this Article, the
0000480
487
term "consultation" shall mean consideration by the chief administrative officer of a college
of recommendations of academic or professional employees, including the committees, if
any, of the appropriate department or professional area, and other appropriate sources in
connection with appointment or reappointment of a specified employee; provided, however,
that nothing contained herein shal! prevent the chief administrative officer of a college from
taking such actions as he or she may deem necessary to meet notice requirements in the
event of nonrenewal of term appointments.
TITLE B. CONTINUING APPOINTMENT
1. Definition. A continuing appointment shall be an appointment to a positlon of academic

rank which shall not be affected by changes in such rank and shall continue until resignation,
retirement, or termination.
2. Method of Appointment. The Chancellor, after considering the recommendation of the

chief administrative officer of the college concerned, and except as hereinafter permitted
with respect to appointment of Distinguished, Distinguished Service, Distinguished Teaching
and University Professors, may grant continuing appointments to such persons who, in the
Chancellor's judgment, are best qualified.
3. Eligibility.
(a} Continuing appointment as Professor, Associate Professor, Librarian or Associate

Librarian. Continuing appointment as Professor, Associate Professor, Librarian or
Associate librarian may be given by the Chancellor on initial appointment or
thereafter. Except as provided in subdivision (c) of this section, further employment
as Professor, Associate Professor, Librarian or Associate librarian after the third
consecutive year of service in any one or any several of these ranks at any one
college must be on the basis of continuing appointment; provided, however, such
appointment shall not be effective until made so by the Chancellor, and provided
further that promotion to any of these ranks shall not operate to extend the service
requirements for continuing appointment described in subdivision (b) of this section.
Continuing appointment as Assistant Professor, instructor, Senior Assistant

Librarian or Assistant Librarian. Except as provided in subdivision (c) of this section,
further employment at any college of an appointee who has completed a total of
17-38, Document 22, 02/01/2017, 1961823, Page478 of 487
seven years of service in a position or positions of academic rank of which the last
three consecutive years have been in a position of academic rank at that college as
Assistant Professor, Instructor, Senior Assistant Librarian or Assistant Librarian, must
be on the basis of a continuing appointment; provided, however, such appointment
shall not be effective until made so by the Chancellor. An Assistant Professor,
Instructor, Senior Assistant Librarian or Assistant Librarian shall not be eligible for
continuing appointment at any of these ranks prior to the completion of a total of
seven years in a position or positions of academic rank.
(c) Additional Term Appointment. An academic employee holding a continurng or

term appointment at one college who is appointed ta academic rank at another
college may be given that appointment far a term not to exceed three years.
(d) Service Credit.

(1) In determining eligibility for continuing appointment under subdivision
{b) of this section, satisfactory fult-time prior service in academic rank at any
other accredited academic institution of higher education may, at the
request of the appointee and in the discretion of the Chancellor, or designee,
be credited as service, up to a maximum of three years, at the time of
appointment at a college. Waiver of all or part of this service credit shall be
granted upon written request of the employee to the chief administrative
officer not later than six months after the date of initial appointment.
(2) In computing consecutive years of service for the purposes of

appointment or reappointment to the academic staff, periods of leave of
absence at full salary shall be included; periods of leave of absence at partial
salary or without salary and periods of part-time service shall not be
included, but shall not be deemed an interruption of otherwise consecutive
service.
TITLE C. PERMANENT APPOINTMENT
1. Definition.
(a} A permanent appointment shall be an appointment of a professional employee
in a professional title which is eligible for a permanent appointment, which shall
continue until a change in such title, resignation, retirement, or termination.
487
(b) A professional employee who serves in a professional title listed in Appendix A, B

or C, infra, of this Article shall not be eligible for permanent appointment and shall
not be covered by this Title C during service in such professional title. Such
professional employee shall be appointed pursuant to the procedure in Title D of this
Article.
2. Method of Appointment. The Chancellor, after considering the recommendation of the

chief administrative officer of the college concerned, may grant permanent appointment in
professional title to such persons who, in the Chancellor's judgment, are best qualified.
3. Initial Appointment. A person who is appointed to a professional title in which

permanent appointment may be granted, must be granted a temporary appointment for the
first year of that person's empioyment in such title when the appointment is made to a
position vacated by a professional employee who is serving a probationary appointment
pursuant to Title C, section 5, or Title D, section 6; otherwise the person shall be granted a
term appointment, except where a temporary appointment is appropriate. Upon completion
of the initial temporary or term appointment, the professional employee may be granted a
further appointment in accordance with this Article. Service in a temporary appointment
pursuant to this section shall be counted toward the satisfaction of the e!iglbi!lty
requirements for initial permanent appointment.
4. Eligibility for Initial Permanent Appointment
{1) Except as provided in subdivisions (a) {1}, (a) (2) and (b) of this section and in
paragraph (b) (2) of section 5 of this Title, at any college further employment
in a professional title in which permanent appointment may be granted, of a
professional employee who has completed seven consecutive years of full-
time service as a professional employee at that college, the last two years of
which have been in that professional title, must be on the basis of permanent
appointment; provided, however, that such appointment shall not be effective
until made so by the Chancellor,
(a) Upon completion of three consecutive years of full-time service as a

empioyee at that coiiege, the last year of which has been in
that professional title, a professional employee in a title eligible for
487
permanent appointment may initiate early consideration for permanent

appointment through notification to the chief administrative officer of
the college. To be effective, such notification must be in writing and
received by the chief administrative officer of the college no later than
nine months prior to the date upon which such employee would
otherwise receive written notice that a term appointment is not to be
renewed upon expiration. In the event the chief administrative officer of
the college grants the employee's request for such early consideration,
any further employment of that employee after completion of five
consecutive years of fuH-time service as a professional employee at that
college, the last two years of which have been in that professional title,
must be on the basis of permanent appointment; provided, however, that
such appointment shall not be effective until made so by the Chancellor.
(b) Upon completion of four consecutive years of full-time service as a

professional empioyee at that college, the last year of which has been in
that professional title, a professional employee in a title eligible for
permanent appointment may initiate early consideration for permanent
appointment through notification to the chief administrative officer of
the college. To be effective, such notification must be in writing and
received by the chief administrative officer of the college no later than
nine months prior to the date upon which such employee would
otherwise receive written notice that a term appointment is not to be
renewed upon expiration. In the event the chief administrative officer of
the college grants the employee's request for such early consideration,
any further employment of that employee after completion of six
consecutive years of full-time service as a professional employee at that
college, the last two years of which have been in that professional title,
must be on the basis of permanent appointment; provided, however, that
such appointment shall not be effective until made so by the Chancellor.
(2) Additional Appointments. A professionai employee holding a permanent

appointment or a term appointment at one college who is appointed to a
professional title at another college may be given that appointment for a term not to
exceed three years.
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487
(3) Service Credit.
(a) !n determining eligibility for permanent appointment under this section,

satisfactory full- time prior service in a professional title at any one college of
the University may, at the request of the professional empioyee and in the
discretion of the Chancellor, or designee, be credited as service, up to a
maximum of three years, at the time of appointment at another college.
Waiver of all or part of this service credlt shall be granted upon written
request of the employee to the chief administrative officer not later than six
months after the date of appointment at that college.
(b) In computing consecutive years of service for the purpose of

appointment or reappointment of professional employees, periods of !eave
of absence at full salary and periods of full-time service in probationary and
temporary appointments granted pursuant to this Title shall be included;
periods of leave of absence at partial salary or without salary and periods of
part-time service shall not be included but shall not be deemed an
interruption of consecutive service for other purposes.
5. Change in Professional Title.

(1} A professional employee holding a term appointment or permanent
appointment in professional title who is appointed to a different professional title at
the same college, shall be given a probationary appointment in the different
professional title.
(a) A professional employee holding permanent appointment in

professional title who completes a probationary appointment in a
different professional title shall be granted a permanent
appointment in the different professional title only and shall not
retain the permanent appointment in the former professional title.
(cl A professional employee who is serving on a term appointment in

professional title and completes a probationary appointment in a
different professional title shall be granted a new term appointment
as appropriate in the new professional title and shall not retain a
0000 4 cit)
term appointment in the former professional title. The new term

appointment shall be for a duration not less than the unexpired time
of the previous term appointment. Service in the probationary
appointment shall count toward satisfaction of the eligibility
requirements for permanent appointment.
(2) At any time during the probationary appointment, the appointing authority may
require the employee to return to his or her former professional title and such action
shall be accomplished as soon as practicable.
(a) A professional amploye-e holding a permanent appointment tn a

professional title and serving a probationary appointment in a
different professional title who so returns to the employee's former
professional title resumes permanent appointment in the former
professional title.
(b} A professional employee holding a term appointment in a

professional title and serving a probationary appointment in a
different professional title who so returns to the employee's former
professional title shall have service in the probationarv appointment
counted towards the satisfaction of the Eligibility requirements for
permanent appointment except as provided herein. Should such
employee so return, he or she shall be granted a new term
appointment in the employee's former professional title and shall
not be eligible for permanent appointment in such former
professional title until expiration of that term appointment at the
earliest. Notice that a term appointment in this circumstance will be
allowed to expire shall be given at the appropriate time prior to the
expiration of that new term appointment.
(3) Basic annual salary protected. Upon returning to the employee's former
professional title pursuant to this section, a professional employee shall receive his
or her former basic annual salary and, in addition, any improvements thereof which
would have been earned had the employee remained in that professional title.
0000486
Document 487
TITLE D. TERM APPOINTMENT
1. Definition. Except as provided in Section 6 of this Title, a term appointment shall be an

appointment for a specified period of not more than three years which shall automatically
expire at the end of that period unless terminated eariier because of resignation, retirement
or termination.
2. Eligibility.
(1) A term appointment may be given to any person appointed to or serving Jn a
position designated as being in the Professional Services Negotiating Unit.
(2) Part-time service.
(a) Further employment at any college of an individual who has been

employed at that college on a part-time basis for four consecutive semesters
in a position designated as being in the Professional Services Negotiating
Unit shall be on the basis of a term appointment. In computing consecutive
semesters of part-time service for the purposes of appointment or
reappointment under this subdivision, periods of leave of absence at partial
salary or \A!ithout sa!arv shall not be inc!uded 1 but shalt not be deemed an
interruption of otherwise consecutive service. An individual who has been
granted term appointment but for whom classroom enrollment is
inadequate shall have no entitlement to salary, benefits, or any other rights
or privileges.
(b) In the event the service of such an individual is interrupted for a period
of four consecutive semesters or more, the chief administrative officer of the
college may grant the employee any type of appointment as in the chief
administrative officer's judgment is appropriate.
3. Method of Appointment. All term appointments shall be made by the chief

administrative officer of the college and shaH be reported to the Chancellor.
4. Renewal of Term. Except as provided in this Article, term appointments may be renewed
the chief administrative officer of the college for successive periods of not more than
three years each; such renewals shall be reported to the Chancellor. No term appointment,
000048 'I
of itself, shall be deemed to create any manner of legal right, interest or expectancy in any
other appointment or renewal.
5. Notice. In the event a term appointment is not to be renewed upon expiration, the chief
administrative officer or the chief administrative officer's representative will notify the
appointee in writing not less than:
(a) Forty-five calendar days prior to the end of a parHime service term appointment;
(b) Three months prior to the end of a term expiring at the end of an appointee's
first year of uninterrupted service within the Univei-sity. for such emptoyees serving
on the basis of an academic year professional obligation and academic employees at
the Empire State College whose terms end in June, July or August, notice shall be
given no later than March 31;
(c) Six months prior to the end of a term expiring after the completion of one, but
not more than two, years of an appointee's uninterrupted service within the
University. For such employees serving on the basis of an academic year professional
obligation and academic employees at the Empire State College whose terms end in
June, July or August, notice sha!! be given no !ater than December 15;
(d} Twelve months prior to the expiration of a term after two or more years of
uninterrupted service within the University;
(e) Six months prior to the expiration of a term for titles listed in Appendix B(l) and
B(2), infra; and
(f) Employees who intend to leave the employ of the University shall give 30 days
notice to the chief administrative officer or the chief administrative officer's
representative. In the event that an employee fails to provide the full 30 days notice,
it shall be within the discretion of the chief administrative office or the chief
adm'mistrative officer's representative to withhold from such employee's final check
an amount equal to the employee's daily rate of pay for each day less than the
required 30 days. Such action shall not constitute discipline.
0000488
17-38, Document 22, 02/01/2017, 1961823, Page485 of 487
APPENDIX C TO ARTICLE XI FUND RAISING TITLES

Director of Fundraising
Associate Director of Fundraising
ARTICLE XU: EVALUATION AND PROMOTION OF ACADEMICANI!

PRQFESSIONAL EMPLOYEES
'ritle A. Evaluation of Academic Employees
1. Policy. It is the policy of the University to evaluate academic employees.
2. Purpose. The purpose of evaluation pursuant to this Title shall be the appraisal of the
extent to which each academic employee has met his or her professional obligation. Written
communication of such appraisal shall be sent to the academic employee concerned. The
evaluations conducted pursuant to this Title may be considered by the chief administrative
officer of a college and the college administrative officers in making decisions or
recommendations with respect to continuing appointments, renewal of term appointments,
promotions, discretionary adjustments to basic annual salary and for any other purpose
where an academic employee's performance may be a relevant consideration. Nothing
contained herein shall prevent the chief administrative officer from taking such action as the
chief administrative officer may deem appropriate to the operating requirements of the
college.
3. Applicability. Pursuant to this Title academic employees may be evaluated; such

evaluation, if any, is to be made by the chief administrative officer, or designee.
4. Criteria. In conducting evaluations pursuant to this Title, the chief administrative officer
of the college concerned, or designee, may consider, but shall not be limited to consideration
of, the following:
(a) Mastery of subject matter - as demonstrated by such things as advanced

degrees, licenses, honors, awards and reputation in the subject matter field.
000048,J
Case 17-38, Document 22, 02/0112017, 1961823, Page486 of 487
(bl Effectiveness in teaching - as demonstrated by such things as judgment of

colleagues, development of teaching materials or new courses and student reaction,
as determined from surveys, interviews and classroom observation.
(c} Scholarly ability - as demonstrated by such things as success in developing and

carrying out significant research work in the subject matter field, contribution to the
arts, publications and reputation among colleagues.
(d} Effectiveness of University service - as demonstrated by such things as college

and University public service, committee work, administrative work and work with
students or community in addition to formal teacher-student relationships.
(e) Continuing growth - as demonstrated by such things as reading, research or

other activities to keep abreast of current developments in the academic employee's
fields and being able to handle success- fully increased responsibility.
Title B. Promotion of Academic Employees
1. Procedure. The chief administrative officer of a college, after giving consideration to

recommendations of academic employees, including the committees, if any, of the
approprlate department or professional area and other appropriate sources in connection
with promotion of a specific academic employee, may promote, or recommend to the
Chancellor for promotion, such persons as are, in the chief administrative officer's judgment,
best qualified. Nothing contained herein shall prevent the chief administrative officer of a
college from taking such promotion action as the chief administrative officer may deem
appropriate to the operating requirements of the college.
2. Criteria. Recommendations of academic employees, or their appropriate committees, or

other appropriate sources may consider, but shall not be limited to consideration of, the
following:
(a) Mastery of subject matter - as demonstrated by such things as advanced

degrees, licenses, honors, awards and reputation in the subject matter field.
{b) Effectiveness in teaching - as demonstrated by such things as judgment of

colleagues, development of teaching materials or new courses and student reaction,
487
Title A. Termination at Will
1. Temporary Appointments. The services of academic and professional employees having

temporary appointments may be terminated at wlll by the chief administrative officer of the
college concerned, not- withstanding any other provision of this Article XIV. There shall be no
right of appeal from such a termination.
Title B. Automatic Termination
1. Term Appointments. The services of academic and professional employees having term
appointments shall cease automatically at the end of their specified terms. There shal! be no
right of appeal from a nonrenewa! of a term appointment.
Title C. Termination for Age or for Physical or Mental Incapacity
1. Retirement. The services of academic and professionai employees may be terminated at

any time for age or for physical or mental incapacity in accordance with Article XV, Title D, of
these Po!ides.
ARTICLE XV: RETIREMENT

Title A. Membership in Retirement Systems
1. Requirement. Members of the professional staff, other than persons having temporary
appointments, shall, if eligible, become members of either the New York State Employees
Retirement System or the New York State Teachers Retirement System, or shall elect the
Optional Retirement Program.
Title B. Voluntary Retirement
1. t.Jotice. Members of the professional staff who wish to retire at an age earlier than 70
under the provisions of the retirement systems of which they are members prior to
0000491

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Case 17-38, Document 31, 02/17/2017, 1975451, Page1 of 162

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

APPENDIX FOR PLAINTIFF-APPELLANT - VOLUME II

Sheet and Judgment ................................................................................. 2

Notices of Appeal, January 3, 2017, January 13, 2017 ................................................. 15

Answer, August 3, 2014 ..................................................................................... .31

l. Decision of Hon. Michael A. Telesca, filed 12/18/2016 ...................... "'" ................... 36

2. Report and Recommendation of Hon. H. Kenneth Schroeder on summary judgment motion,

3. Report and Recommendation of Hon. H. Kenneth Schroeder on Rule l l motion, filed

Decisions in Related State Court Litigation .............................................................. 1 I 8

l. Memorandum Decision of Appellate Division, Fourth Department, in Malkan v. State of New

for l~harles P. 2014 ....................................... 176

Makau Mutua Deposition (excerpt), Dec. 19, 2013 .................................................... 300

Declaration ofMakau Mutua, June 26, 2015 ............................................................ 332

Documents (2006-2014) .................................................................................... 374

2. Policy on LRW faculty reappointments, Dec. 9. 2009 .................................... 382

3. Mutua notice of nonrenewal, Aug. 28, 2008 .............................................. 383

4. Malkan offer letter, July 25, 2000 ............................................................ 384

5. Malkan Deposition (excerpt), Dec. 18, 2013 ............................................... 387

6. Malkan interview schedule, June 25, 2000 .................................................. 398

7. Declaration of President Satish K. Tripathi, Dec. 12, 2013 ............................... 399

9. Mutua Statement of Undisputed Facts Rule 56. l ), June 7, 2014 ............... .4 l I

l11falkan v. Gardner, Erie County

of the (excerpts), current June 1, 14 ..................... ., .......... .461

17-38, Document 22, 02/01/2017, 1961823, Page329 of 487

VI. Declaration ofMakau Mutua in Opposition to

Case 17-38, Document 22, 02/01/2017, 1961823, Page330 of 487

UNITED STATES l}JS1'RICl' COURT

position until Decembt."t' 2614, when l steppt.'C! down,

against me and 1:ny counsel, David Sleight. Docket No. 70.

have never wavered from that position,

4. Plaintiff's Rule l l motion relies heavily on foimet Defemlant Charles l:wing' s

17-38, Document 22, 02/01/2017, 1961823, Page331 of 487

to su!Jyand damage my ptofoss.fonal reputation.

sever until over tv110 years atler

this actimL Nor did Mr. had

and then nrnve to sever.

the Derm who can also remove them. On.

action because he would take certain cleletednus

to rhe entire Law Schoo.!

Tlm.."C of the other members who "'''n'"""'affidavitsin support of Mr.

eornmltative review of the The review was

of the Promotion and

Center for LHw and in 20! l because

of !he Law School.

Some of the other members who cithcr suhn1iHt>.tl affidavits whose

of his n:ioticn to sever Di;iame

adrninistration introduced while I was Dean and

the Law SdiooL

have both times '1'i1hout

me that rm withdrew frbm defenses agreement The

he t11ed his mf1tion to seV\,'L

IJ<1ull'rt111er1t r;,nr1n1ev Grievance Committee ""'"14-".

testified in the?ERB rn this case . The

Rohen Steinfeld did was a '""'!':-''"'"'"' fkn::e

Grievance Cmnm:ittee has no! issued ae,;:rs:ton on Mr,

Case 17-38, Document 22, 02/01/2017, 1961823, Page334 487

Case 1:12-cv-00236-MAT-HKS Document 63-4 Flied 08/30/14 Page 19 of 47

2 STATE OF NEW YORK

3 PUBLIC EMPLOYMENT RELATIONS BOARD

6 UNITED STATES UNIVERSITY PROFESSIONS,

7 NEW YORK STATE UNITED TEACHERS,

- and - Case No. U-28826