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M E M O R A N D U M

To: Provost Chip Zukoski
From: Clinical Professor Jeffrey Malkan
Date: May 28, 2014
Re: my tort and contract damages


Just so that there are no misunderstandings about the way forward in this case, I will
summarize the violations of civil law (excluding due process issues) for which remedial and
punitive measures must be taken by the University to ensure that this can never occur again.
1. Defamation, tortious interference with employment relations, emotional distress.
Since February 2008, Dean Makau W. Mutua has repeatedly subjected me to extreme and
outrageous lies and slanders. He falsely accused me in sworn testimony of physically
intimidating the legal writing faculty and of assaulting him personally at an APPC committee
meeting on March 25, 2008 (even though I am not a shrinking violet, I felt I was about to be
attacked [I]t was a remarkable moment in the history of the law school). He further stated
that he and Vice-Dean Jim Gardner had determined that Jeff might be a physical threat to some
of us. He said at his most recent deposition (Dec. 19, 2013) that he believed I would sooner or
later go postal.
He also called me a miserable failure and stated that the problem with Mr. Jeff
Malkan is that he is an imposter. Finally, to finish me off permanently in my profession, he
falsely testified in both state and federal courts that the faculty had voted to terminate my
employment as of the end of the spring 2007 semester and that afterwards no one on the faculty
knew what [Jeff] was still doing in the building.
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Former Vice-Provost Finley contributed her share of defamation by writing, among other
things, that talking to Jeff Malkan is like trying to talk to a piece of furniture and that I could
teach Jeffs students in three weeks what he had been unable to teach them in an entire year.
Former Vice-Dean James A. Gardner contributed the libel that Jeff has been a no-show
employee who is being paid handsomely for a job he is not doing, and that as far as he could tell
there is no legal writing program so Jeff is, in fact, directing nothing.
Both Vice-Provost Finley and Vice-Dean Gardner abused the confidentiality of the
faculty review process in order to lie and slander with impunity in the belief that I would not be
able to defend myself from them because I would never hear their allegations against me.
I would like to know what reputable university would tolerate this level of dishonesty,
injustice, and incivility from its leadership toward its faculty. The administrators of SUNY
Buffalo, particularly Provost/now-President Satish K. Tripathi, Director of Employee Relations
Jeff Reed, and Employment Counsel Jim Jarvis, Esq., did nothing at all to curb this orchestrated
campaign of defamation against me or to admonish the offenders about their violations of the
Faculty Code of Conduct.
Instead the University administration has used the unlimited resources of New York State
over a period of six years to defend an injustice and a crime against a member of the Law School
faculty. The University has been fighting this litigation as a war of attrition and justifying its
intransigence and malice with the scandalous lies that Dean Mutua, former Vice-Provost Finley,
and former Vice-Dean Gardner have used to smear their victim.
2. Breach of contract. No reputable university or corporation breaches employment
contracts and then litigates against the wrongfully terminated and now dishonored employee for
six years. It is difficult even to address the fanciful pretexts with which Dean Makau W. Mutua
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has tried to justify breaking my contract and which no one at the University has ever seen fit to
question. What is most appalling is that the University and its attorneys have allowed this breach
of contract to continue to the present day in the cynical hope of simply breaking me down with
stonewalling, frivolous arguments, and calculated delays.
(a) My job was eliminated when the LRW program was replaced by the LAWR
program. In other words, changing the name of one of the courses I taught eliminated my
instructional position in the Law School. Not only is this claim absurd on its face, but my
contract specifically provided that my teaching responsibilities were not tied to my
administrative post as Director of LRW or to the first-year LRW program in any form.
(b) My contract was ultra vires because the Policies of the SUNY Board of Trustees
do not allow presumptively renewable term contracts for clinical professors. This statement is
untrue according to any possible interpretation. The SUNY Trustees Policies specifically
provide that the Dean of a College or Department may adopt rules and procedures necessary to
comply with the schools operating requirements (i.e., its accreditation standards). In addition,
President Tripathi certified exactly the opposite to the ABA Section on Legal Education on the
occasion of the Law Schools reaccreditation in April 2009. The Law School maintains Faculty
Bylaws and a Clinical Appointments Policy that comply with ABA Standard 405(c), which is the
clinical faculty standard. The best that can be said for this argument is that, if it is valid, then the
University is admitting that over the course of many years it has been perpetrating a deliberate
fraud on the ABA and the clinical faculty of the Law School.
(c) There are no employment contracts in SUNY apart from the Collective Bargaining
Agreement (CBA). On October 19, 2006 I received a document from Dean R. Nils Olsen, Jr.
with the terms and conditions of my administrative appointment as Director of the Legal Writing
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Program and of my faculty appointment as Clinical Professor of Law. The document was
entitled a contract. I countersigned and returned it on November 16, 2006. I am quite certain
that at various times every other member of the Law School faculty has received a contract
signed by the Dean and countersigned by them. That is a contract formality.
It is, moreover, black-letter law that there is no inconsistency between a CBA (which, in
this case, is the contract between the State of New York and NYSUT/UUP) and individual
employment contracts between a SUNY department and the faculty members of that department.
Finally, any University HR officer who is familiar with the CBA is well-aware that
breach of contract or any legal claim that requires interpretation of the Faculty Bylaws of any
SUNY academic department are not eligible topics for a union grievance. What the UUP may
do is file an improper practice charge with PERB, within a four-month statute of limitations, if it
has evidence of retaliation against a union member, which is what the UUP did in my case.
(d) I do not have a valid contract because I am not a Clinical Professor. I have never
heard any sensible explanation of how to reconcile this absurdity with the letter of appointment
I received from former-President John B. Simpson conferring on me the state title and academic
rank of Clinical Professor.
It is commonplace in legal education for legal writing faculty to be granted security of
employment sufficient to protect their academic freedom under the umbrella of ABA Standard
405(c) as well the institutional rank of Clinical Professor. See statistics cited in ALWD/LWI
2013 Report of Annual Legal Writing Survey at 36, 63-65, available on-line at
http://www.lwionline.org/uploads/FileUpload/2013SurveyReportfinal.pdf (last visited May 27,
2014). In addition, the only definition of a Clinical Professor in any SUNY rule or regulation is
an academic employee of the University who holds the title and rank of Clinical Professor.
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Conclusion. Every reputable university or corporation has a Human Resources
Department and compliance procedures to ensure that amateur managers like Vice-Provost
Finley, Dean Mutua, or Vice-Dean Gardner do not exceed their authority or go rogue with
personal agendas. There does not seem to be anyone at SUNY Buffalo under President Tripathi
who has the authority to protect the interests of the enterprise from vain and ruthless faculty
members who have used the authority delegated to them by the Provost to pursue private
vendettas.
I dont have any reason to doubt your personal sincerity and honor and I seriously doubt
that at any point in your prior experience you have encountered such malicious and criminal
misconduct in a university community much less in a university law school. It is your
responsibility, however, to deal with this betrayal of the institutions integrity. I should not have
to carry this burden by myself any further, although Im prepared to do so for as long as
necessary.
I will not address here the attempts by Dean Makau W. Mutua and President Satish K.
Tripathi to obstruct the due process of law in federal and state court except to say that my
allegations of criminal misconduct cannot legally, at this point, be withdrawn, and that I must
continue to report what I know to law enforcement agencies and fully cooperate with any
investigation and prosecution of these crimes.

Sincerely,

Jeffrey Malkan