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VOLUME 1
STATE OF NEW YORK
PUBLIC EMPLOYMENT RELATIONS BOARD
* * * * * * * * * * * * * * * * * * * * * *
In the Matter of: *
UNITED STATES UNIVERSITY PROFESSIONS, *
NEW YORK STATE UNITED TEACHERS, *
AFT, LOCAL 2190, AFL-CIO, *
Charging Party, *
*
-and- Case No. U-28826
STATE OF NEW YORK (State University *
Of New York at Buffalo) *
Respondent. *
* * * * * * * * * * * * * * * * * * * * * *
Public Employment Relations BoardMain Hearing RoomFifth Floor80 Wolf RoadAlbany, New York 12205Tuesday, November 17, 2009
The above-entitled matter came on for hearingat 12:15 p.m., pursuant to Notice.
Before: KENNETH S. CARLSON Administrative Law Judge
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A P P E A R A N C E S:
NEW YORK STATE UNITED TEACHERS, Western New York Regional Office, 270 Essjay Road, Williamsville, New York 14221-8276 BY: TARA SINGER-BLUMBERG, Labor Relations Specialist, and MARILYN RASKIN-ORTIZ, Associate Counsel, appearing on behalf of the Charging Party.
STATE OF NEW YORK, GOVERNOR'S OFFICE OF EMPLOYEE RELATIONS, MICHAEL N. VOLFORTE, Acting General Counsel, Agency Building 2, 13th Floor, Empire State Plaza, Albany, New York 12223-1250, BY: LYNN HOMES VANCE, of Counsel, appearing on behalf of the Respondent.
* * * * * * * * * *
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION FOR ID IN EVID
ALJ:
1. Original Charge 10 10
2. Notice of Conference 10 10 dated 12/26/08.
3. Letter from Ms. Vance to 10 10 Director Monte Klein dated 1/23/09.
4. Answer 10 10
5. Letter from Director Klein to 10 10representatives dated 1/27/09rescheduling the conference inthis matter.
6. Notice of Hearing dated 4/03/09. 10 10
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INDEX TO EXHIBITS CONT'D
EXHIBIT DESCRIPTION FOR ID IN EVIDALJ:
7. Letter from ALJ Carlson to 10 10representatives dated 5/07/09adjourning original hearing andrescheduling for 9/16/09.
8. Letter from ALJ Carlson to 10 10representatives dated 9/11/09granting Ms. Vance's requestfor adjournment.
9. Letter from ALJ Carlson to 10 10representatives dated 9/17/09confirming hearing date of11/17/09.
JOINT:
1. Collective Renegotiated Agreement 12 12Between the parties for the periodOf 7/07/07 through 7/01/2011.
2. Series of e-mails from Cheri 12 12Tubinis to Jeff Malkan dated3/10/08 through 3/13/08.
3. An e-mail from Cheri Tubinis on 12 12behalf of Jeff Malkan dated3/13/08 at 3:32 p.m.
4. An e-mail dated 3/27/08 at 12 1210:45 a.m.
5. An e-mail from Ms. Singer-Blumberg 12 12to Sarah Couch and Jeff Reid dated 5/29/08 at 2:54 p.m.
6. An e-mail from Ms. Singer-Blumberg 12 12to Scott Nostaja dated 6/11/08 at10:54 a.m. - 2 pages.
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INDEX TO EXHIBITS CONT'D
EXHIBIT DESCRIPTION FOR ID IN EVID
JOINT:
7. Letter from Dean Mutua to Jeff 12 12Malkan dated 8/28/08.
8. University at Buffalo Law School 12 12newsletter titled Law Brief datedSeptember 2009.
9. U.B. Law Forum magazine, Fall 12 122009 issue - approx. 40 pages.
CHARGING PARTY:
1. Letter from Dean R. Nils Olsen, Jr. 17 17to Jeffrey Malkan dated 7/25/00.
2. Resume of Jeffery Malkan 17 17
3. Letter from Dean Olsen to Mr. Malkan 17 17dated 10/19/06 - appointment letterwith signature of Mr. Malkan on11/16/06 with an attachment titledStandards: Rules of Procedure forApproval of Law Schools.
4. Memo from Dean Olsen to Dr. Satish K. 17 17Tripathi dated 9/03/07 RE: ReappointmentOf Jeffrey Malkan.
5. Minutes from 5/07/08 law school 17 17faculty meeting - 3 pages.
6. E-mail from Cheri Tubinis to a list 17 17serve for the law school dated6/19/08 with the subject of GeorgeKannar and skills training.
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INDEX TO EXHIBITS CONT'D
EXHIBIT DESCRIPTION FOR ID IN EVID
CHARGING PARTY:
7. Memo from George Kannar dated 17 174/15/09 with the subject ProposedFaculty Resolution EstablishingA Legal Skills Program, RecommendedFor Faculty Adoption by the A.P.P.C.on 4/15/09.
8. The Bylaws and Standing Orders of 17 17The Faculty at the University atBuffalo Law School, the State University of New York.
9. Minutes of law school faculty 17 17Meeting held on Friday, September 12, 2008 - 2 pages.
10. Posting for a position at the 17 17University of Buffalo dated10/10/08 on behalf of GeorgeKannar - 3 pages.
11. Letter from J. Malkan to 17 17Professor George Kannar dated10/24/08.
12. Letter from James A. Gardner, 17 17Vice Dean for Academic Affairs,To J. Malkan dated 3/30/09.
13. University at Buffalo Law School 17 17Section L, 2008 Fall Schedule -3 pages.
14. University at Buffalo Law School 17 17Fall 2009 Schedule.
15. E-mail from Sarah Couch to 17 17 Ms. Singer-Blumberg dated 5/23/08at 1:35 p.m. regarding Updates.
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INDEX TO EXHIBITS CONT'D
EXHIBIT DESCRIPTION FOR ID IN EVID
CHARGING PARTY:
16. Memo from Tony Szczygiel to the 85 87 Committee on Clinical Promotionand Review dated 4/06/09.
RESPONDENT:
1. Dean Mutua's resume. 18 18
2. Letter from Dean Mutua to 18 18Mr. Malkan dated 2/20/08.
3. Letter to Ms. Laura Reilly 19 --dated 2/20/08 RE: A Letterof Evaluation.
4. Copy of the 4/22/09 meeting 20 20Minutes - 2 pages.
5. Going Forward: Principles, 20 20Aspirations and Strategiesfor the University at BuffaloLaw School, approved 5/16/08and amended on 10/17/08 -multiple pages.
6. Applicant list for the position 20 20Of Lecturer XII.
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WITNESS INDEX
NAME D X RD RX
Jeffrey Malkan 27 96 103 --
Opening Statement:
By Ms. Singer-Blumberg Page 22
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LAW JUDGE CARLSON: Good afternoon. I will
note for the record it is afternoon. This is a formal
PERB hearing in Case No. U-28826. This improper practice
charge was filed by United University of Professions
alleging a violation of Section 209A(1a) and 209A(1c) of
the Public Employees Fair Employment Act.
Specifically, the charge alleges that the
employment contract for a clinical professor at the
University of Buffalo Law School was not renewed in
response to the union's efforts in advocating on behalf
of that professor. For the record I am Kenneth S.
Carlson, the administrative law judge assigned to hear
this matter. May I have the appearances of the parties,
please, for the record?
MS. SINGER-BLUMBERG: Tara Singer-Blumberg
for the Charging Party.
MS. VANCE: Lynn Homes Vance of counsel to
the Governor's Office of Employee Relations, Michael N.
Volforte, acting general counsel.
LAW JUDGE: Thank you. I just noted before
it's afternoon. We met in conference this morning to go
through a number of exhibits. I appreciate the parties
efforts and willingness to stipulate to a lot of
exhibits. It saves us a lot of time on the record. It
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did take us a while this morning, but I do believe that
that will save us some time and some -- some headaches
going forward. I am going to read into evidence -- or
enter into evidence and read into the record what we have
starting with the ALJ exhibits.
ALJ Exhibit No. 1 is the Original Charge in
this matter. It was date stamped as having been received
by PERB on December 22, 2008 and it was postmarked on
December 19, 2008. I will note for the record there are
a number of exhibits -- letter attachments, if you will,
to the Charge. They are in evidence as part of the
Charge, but they will be coming in later as joint
exhibits for the truth of the -- of what's asserted in
those records. So, what we have attached to the Charge,
in other words, we will also be dealing with later
through some joint and stipulated exhibits.
ALJ No. 2 is the December 26, 2008 Notice of
Conference.
ALJ Exhibit No. 3 is a January 23, 2009
letter from Director -- I'm sorry -- from Ms. Vance to
Director Monte Klein. That was ALJ Exhibit 3.
ALJ Exhibit No. 4 is the Answer.
ALJ Exhibit No. 5 is a January 27, 2009
letter from Director Klein to the representatives
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rescheduling the conference in this matter.
ALJ Exhibit No. 6 is the April 3, 2009
Notice of Hearing.
ALJ Exhibit 7 is a May 7, 2009 letter from
me to the representatives adjourning the original hearing
and rescheduling it for September 16, 2009.
ALJ Exhibit No. 8 is a letter from me to the
representatives dated September 11, 2009 granting
Ms. Vance's request for an adjournment for the hearing
over Ms. Singer-Blumberg's objection. Again, that was
ALJ Exhibit No. 8.
ALJ Exhibit No. 9 is a September 17, 2009
letter from me to the representatives confirming that a
hearing in this matter had been rescheduled for today.
Those are the ALJ exhibits.
{The documents referred to, ALJ ExhibitsNos. 1 through 9, were marked foridentification and received in evidence}.
LAW JUDGE: We also have a number of joint
exhibits starting with Joint Exhibit No. 1, which is a
copy of the Collective Renegotiated Agreement between the
parties dated July 7, 2007 through July 1, 2011. That is
Joint Exhibit No. 1.
Joint Exhibit No. 2 is a series of e-mails
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dated March 10, 2008 through March 13, 2008, the last
message coming at 2:04 p.m. on the thirteenth. Again,
that's Joint Exhibit No. 2.
Joint Exhibit No. 3 is an e-mail also dated
March 13, 2008. This one at 3:32 p.m.
Joint Exhibit No. 4 is another e-mail dated
March 27, 2008 at 10:45 a.m.
Joint Exhibit No. 5 is an e-mail from
Ms. Singer-Blumberg to a Sarah Couch and a Jeff Reid
dated May 29, 2008 at 2:54 p.m.
Joint Exhibit No. 6 is another e-mail from
Ms. Singer-Blumberg to a Scott Nostaja, N-O-S-T-A-J-A,
dated June 11, 2008 at 10:54 a.m. That is a two-page
e-mail.
Joint Exhibit No. 7 is an August 28, 2008
letter from Dean Mutua, M-U-T-U-A, to a Mr. Jeffrey
Malkan, M-A-L-K-A-N. Let's go off the record for a
second.
{There was an off the record discussion}.
{Back on the record}.
LAW JUDGE: We're back on the record.
That was Joint Exhibit 7.
Joint Exhibit No. 8 is a copy of a -- I
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don't know what you call this -- a newsletter of some
sort from the University at Buffalo Law School titled Law
Brief with a date of September 2009. That is Joint
Exhibit No. 8.
Joint Exhibit No. 9 is a magazine of some
sort titled U.B. Law Forum, fall -- the date of this is
Fall 2009. It's a multi-page magazine -- about forty
some odd pages. Of relevance to this hearing the parties
have agreed only -- the only relevance to this hearing
are Pages 16, 17 and 18.
Can we stipulate to that on the record?
MS. SINGER-BLUMBERG: Yes.
LAW JUDGE: Ms. Vance?
MS. VANCE: Yes.
LAW JUDGE: Thank you. All right. That was
Joint 9. That covers all of the Joint exhibits.
{The documents referred to, JointExhibits Nos. 1 through 9, were markedfor identification and received inevidence}.
LAW JUDGE: We have a number of Charging
Party exhibits as well. We'll start with Charging Party
No. 1, a July 25, 2000 letter to Jeffrey Malkan,
M-A-L-K-A-N, from Dean R. Nils Olsen, Jr. Nils is
N-I-L-S. Olsen is O-L-S-E-N. This is concerning an
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initial appointment of Mr. Malkan. That was Charging
Party No. 1.
Charging Party No. 2 is Mr. Malkan's resume.
Off the record.
{There was an off the record discussion}.
{Back on the record}.
LAW JUDGE: The resume was Charging Party 2.
Charging Party No. 3 is an October 19, 2006
letter to Mr. Malkan from Dean Olsen. I will note that
this -- in fact, this is an appointment letter. There is
a line at the end for Mr. Malkan to sign, which he has
done -- or he had done, accepting the appointment as a
clinical professor -- actually two lines. There is also
a line where he accepts the appointment as director of
research and writing as well. It's handwritten dated
November 16, 2006 next to his signatures. Let's go off
the record for a moment.
{There was an off the record discussion at this point in
time}.
{Back on the record}.
LAW JUDGE: Let's go back on the record. I
will note that along with the two plus page letter with
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the signatures there is a series of attachments -- or
there is an attachment titled Standards: Rules of
Procedure for Approval of Law Schools from the American
Bar Association -- a couple of pages -- maybe four pages
from the A.B.A., the American Bar Association. That is
Charging Party No. 3.
Charging Party No. 4 is a one-page
document -- a memorandum to Dr. Satish K. Tripathi --
Satish, S-A-T-I-S-H, K as in key, Tripathi,
T-R-I-P-A-T-H-I -- who is the provost and Executive Vice
President for Academic Affairs from Dean Olsen. This
memo is dated September 3, 2007 with a subject of
reappointment of Jeffrey Malkan. Again, that's Charging
Party No. 4. In effect, this memo is a clarification of
the title Professor Malkan was changed from -- or my
understanding was it's a clarification to correct that
the title was clinical professor rather than clinical
associate professor. That's Charging Party 4.
On to Charging Party No. 5. These are
minutes from the May 7, 2008 law school faculty meeting.
It's a three-page document. We've agreed that's in as
Charging Party 5.
Charging Party No. 6 is a June 19, 2008
e-mail from Cheri, C-H-E-R-I, Tubinis -- Tubinis,
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T-U-B-I-N-I-S, to what appears to be a list serve for the
law school with a subject of George Kannar, K-A-N-N-A-R,
and skills training. While this was sent by Ms. Tubinis,
I presume she is the dean's assistant; is that correct?
MS. SINGER-BLUMBERG: Correct.
LAW JUDGE: We have a nod from --
MS. VANCE: Yes.
LAW JUDGE: -- okay. Thank you. And the --
I don't want to call it a signature, but typed in is the
dean's name. So, although it was sent from the
secretary, I presume this was under the authority of the
dean. Do we have a stipulation to that effect?
MS. SINGER-BLUMBERG: Yes.
MS. VANCE: Yes.
LAW JUDGE: Okay. Thank you.
That's Charging Party No. 6.
Charging Party No. 7 is a memo to the U.B.
Law Faculty from George Kannar, K-A-N-N-A-R, dated
April 15, 2009 with the subject Proposed Faculty
Resolution Establishing a Legal Skills Program,
Recommended For Faculty Adoption by the A.P.P.C. on
April 15, 2009. This is -- the memorandum is a one-page
memo with the second page being the Proposed Faculty
Resolution and the third page being a chart. We'll get
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back to that later as well, but that for now is
Charging Party No. 7.
Charging Party No. 8 is a multi-page
document -- about a dozen -- thirteen pages titled The
Bylaws and Standing Orders of the Faculty at the
University at Buffalo Law School, the State University of
New York. That was Charging Party No. 8.
Charging Party No. 9 is minutes of a meeting
of the law school faculty held on Friday, September 12,
2008. That is Charging Party 9. It's a two-page
document.
Charging Party No. 10 is a posting for a
position at the University of Buffalo posted on behalf of
George Kannar. I'll note that here the -- Mr. Kannar's
last name is spelled differently than it was previously,
but we've all agreed this is the same person. Here it's
spelled K-U-N-N-A-R. I don't know what's correct, but in
the record we're referring to the same person whether
it's with the U or the A. This posting was dated
October 10, 2008. The document is a three-page document.
Again, that was Charging Party 10.
Charging Party No. 11 is an October 24, 2008
letter to Professor George Kannar from Mr. Malkan. It's
a one-page document. That's Charging Party No. 11.
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Charging Party No. 12 is a March 30, 2009
letter to Mr. Malkan from a James A. Gardner,
G-A-R-D-N-E-R, Vice Dean for Academic Affairs. That was
Charging Party No. 12.
Charging Party No. 13 is a three-page
document titled the University at Buffalo Law School
Section L Fall 2008 Schedule. That was Charging Party
No. 13.
Charging Party No. 14 is a similar schedule
for the fall of 2009.
Finally, for the Charging Party exhibits, we
have Charging Party No. 15, which is an e-mail from Sarah
Couch, who is the assistant director of employee
relations, to Ms. Singer-Blumberg with a date of May 23,
2008 at 1:35 p.m. with the subject updates. It's a
one-page document and that was Charging Party No. 15.
{The documents referred to, ChargingParty Exhibit Nos. 1 through 15 were markedfor identification and received inevidence}.
LAW JUDGE: We have just a handful of
Respondent exhibits as well starting with Respondent
Exhibit No. 1, what I will describe as a resume for the
current dean, Mr. Mutua, M-U-T-U-A. This has been marked
and entered as Respondent Exhibit No. 1.
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Respondent No. 2 is a February 20, 2008
letter from Dean Mutua to Mr. Malkan. I will note for
the record we discussed this in conference. The copies
that we have of both Respondent Exhibits 2 and 3 are
unsigned by the dean, but there was no question as to the
authenticity of these documents, at least that's my
understanding.
MS. SINGER-BLUMBERG: Correct.
LAW JUDGE: Okay. So, Respondent Exhibit 2
was the 2/28/08 letter to Mr. Malkan.
{The document referred to, Respondent'sExhibit Nos. 1 and 2, were markedfor identification and received inevidence}.
LAW JUDGE: Respondent Exhibit No. 3 is a
similar letter, also dated 2/20/08, to a Ms. Laura
Reilly, R-E-I-L-L-Y, the difference being that there is
an attachment regarding a letter of evaluation and some
additional text in the letter, but otherwise, again, it's
fairly similar to Respondent Exhibit 3. Did we -- let's
go off the record.
{There was an off the record discussion}.
{Back on the record}.
LAW JUDGE: Respondent Exhibit 3 has been
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marked for identification purposes only at this point.
As I indicated before, with respect to Respondent 2, that
document had been received by Mr. Malkan and we had
verification of authenticity there. This document was
received by Ms. Reilly who is not in attendance today, so
we don't have this verified just yet. We may get there
through testimony, so we did want to mark this and it has
been marked only, not entered, as Respondent Exhibit 3 at
this point.
{The document referred to, Respondent'sExhibit No. 3, was markedfor identification}.
LAW JUDGE: Respondent Exhibit No. 4 is an
April 22, 2009 -- a copy of the minutes, I should say,
from the April 22, 2009 meeting. It's a two-page
document entered as Respondent 4.
Respondent Exhibit No. 5 is a multi-page
document -- it seems to be about a dozen pages -- titled
Going Forward: Principles, Aspirations and Strategies
for the University at Buffalo Law School. It indicates
that it was approved by the faculty on May 16, 2008 and
amended on October 17, 2008. This has been marked and
entered as Respondent Exhibit No. 5.
Respondent Exhibit No. 6 is an applicant
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list for the position title of Lecturer XII and a posting
number of 0800451. In effect what we have here is a
computer listing of a number of applicants or candidates
for the position with some notations as to the status of
such applications. Again, that was Respondent Exhibit
No. 6.
I do want to go back for a moment. I forgot
to mention when we were on Respondent No. 4 -- Respondent
No. 4 references an attachment somewhere in there?
MS. SINGER-BLUMBERG: The beginning.
LAW JUDGE: Oh, yes, number one. Copy
attached. That attachment -- I had mentioned before,
Pages 2 and 3 of Charging Party Exhibit No. 7 -- was --
is also or was also the attachment to Respondent Exhibit
No. 4. Could we have a stipulation from the parties on
that?
MS. SINGER-BLUMBERG: Yes.
MS. VANCE: Yes.
LAW JUDGE: Okay. Thank you. All right.
{The document referred to, Respondent'sExhibit Nos. 4, 5 and 6 were markedfor identification and received inevidence}.
LAW JUDGE: With that I'll note that it's
about a quarter to one. Do you want to give an opening
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now or do you want to go to lunch.
MS. SINGER-BLUMBERG: I' rather go to lunch
and do it --
LAW JUDGE: Fair enough. Make it all in one
fell swoop.
MS. VANCE: Why don't we get Mr. Volforte's
spelling for the record?
LAW JUDGE: Fair enough. Volforte, V-O- --
MS. VANCE: Michael N. Volforte.
LAW JUDGE: -- V-O-L-F-O-R-T-E. He's the
Acting General Counsel for the Governor's Office of
Employee Relations.
MS. VANCE: And why don't we get
Mr. Kannar's spelling.
LAW JUDGE: Yes. Which is it?
Is it U or A?
MS. SINGER-BLUMBERG: I think it's A.
LAW JUDGE: George Kannar, K-A-N-N-A-R.
MS. VANCE: Is that correct?
MS. SINGER-BLUMBERG: Yes.
LAW JUDGE: With that let's go off the
record and we'll take a little break. Off the record.
{There was a short break in the proceeding at this point
in time}.
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{Back on the record}.
LAW JUDGE: We're back on the record. When
last we left off before lunch we had read the Joint,
stipulated, ALJ and Respondent and Charging Party
Exhibits into the record and upon our return
Ms. Singer-Blumberg is going to give an opening
statement.
MS. SINGER-BLUMBERG: Thank you.
LAW JUDGE: The floor is yours.
OPENING STATEMENT BY MS. SINGER-BLUMBERG
MS. SINGER-BLUMBERG: Professor Jeffrey
Malkan was hired by the Law School at the University of
Buffalo as a clinical associate professor on September 1,
2000. He also held an administrative position as
director of the research and writing program. As a
result of his director position, he had a one course
release from his teaching duties.
In April 2006 the full law school faculty
voted to renew his contract and promote him to clinical
professor as well as continuing as director of research
and writing. Professor Malkan continued in this dual
appointment until he was summarily removed as director
during the school's spring break in March 2008. The
director position was an at will position. As such
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Professor Malkan could be removed without the necessity
for cause; however, due to the summary way that he was
removed and the fact that his removal was announced by
the dean to the entire faculty during spring break,
Professor Malkan was questioned by his colleagues about
what he had done wrong and rumors were flying.
As a result, Professor Malkan initially
requested a meeting with the dean to discuss the research
and writing program as well as his removal as director.
The dean refused to meet with him. Professor Malkan then
sought UUP's assistance to demand that the dean be
required to meet with him as well as for the dean to
issue a clarification memo to the faculty indicating that
Professor Malkan had not done anything wrong. For
clarification, UUP is United University of Professions,
the bargaining agent at U.B. for the faculty.
UUP through its labor relations specialist,
Tara Singer-Blumberg, repeatedly requested that the
director of employee relations, Jeff Reed, R-E-E-D,
arrange for a meeting with the dean and a name clearing
e-mail. During the very first discussion in March 2008,
Tara Singer-Blumberg specifically asked Jeff Reed if
there was any intent on the dean's part to terminate
Professor Malkan's employment at the law school as a
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clinical professor. Jeff Reed told Tara Singer-Blumber
that there was no such plan to remove him from his
clinical professor position.
Over the following several months in the
spring of 2008 Tara Singer-Blumberg repeatedly requested
and pushed for the meeting and the name clearing e-mail.
In addition, UUP requested copies of memos allegedly
written by the research and writing instructor assessing
Professor Malkan's performance. The only response that
was forthcoming from the dean through Jeff Reed was that
if the dean was going to send out another e-mail to the
faculty he would quote "telling to the truth about
Professor Malkan" and it would indicate that he was
removed as director for incompetence.
When Tara Singer-Blumberg could not make any
progress with Employee Relations she contacted the chief
of staff and V- -- vice president for human resources,
Scott Nostaja. Tara Singer-Blumber had several
conversations with Scott demanding that Scott get the
dean to do the right thing and meet with Professor
Malkan. Scott advised Tara that he was in communication
directly with the dean and that the dean was fighting him
on UUP's demands. UUP never stopped demanding that the
dean meet with Professor Malkan.
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On August 28, 2008, Professor Malkan was
non-renewed from his position as clinical professor. The
last date of his employment was August 31, 2009. On
March 13, 2008, when the dean removed Professor Malkan as
director, he advised Professor Malkan and the entire
faculty that he had decided that the research and writing
program should move in a different direction under new
leadership. When Professor Malkan was non-renewed, the
written reason provided by the dean in the non-renewal
letter was that the law school had terminated the
research and writing program. The research and writing
program was never terminated in 2008.
During the 2008-2009 academic year the dean
appointed a professor to study the feasibility of making
changes to the program. Any proposal then had to be
presented to the full faculty for a vote. In April 2009,
the faculty were finally presented with a proposal, which
did not materially change any aspect of the research and
writing program. The same curriculum is being offered
using the same textbooks as in prior years. The only
changes to the program were that the research and writing
program was incorporated into a skill programs, which now
included some mandatory second and third year offers.
When Professor Malkan was first removed as
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director, he was advised that it was because of the
dean's intention to move the research and writing program
in a new direction. At that time there was no intention
to remove him from his academic position. Then the union
went to bat on his behalf to demand that the dean treat
him fairly and clear his name. The pressure that the
union placed on the dean on Malkan's behalf resulted in
the dean's non-renewal of Professor Malkan. The dean's
rationale that the research and writing program was
terminated is both false, not supported by the facts and
pretextural.
LAW JUDGE: Thank you. Ms. Vance, I
understand you'd like to reserve until your case --
MS. VANCE: Yes. Thank you.
LAW JUDGE: -- for an opening. Okay. Thank
you. Ms. Singer-Blumberg, you can call your first
witness then.
MS. SINGER-BLUMBERG: We call
Professor Malkan.
WHEREUPON,
JEFFREY MALKAN, was called by and on
behalf of the Charging Party, and, being first duly
sworn, was examined and testified as follows:
LAW JUDGE: You may be seated. Do me a
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{ Malkan - Direct - Singer-Blumberg } 27
favor and just state and spell your name for the record.
THE WITNESS: Jeffrey Malkan, J-E-F-F-R-E-Y
and M-A-L-K-A-N.
LAW JUDGE: Your witness.
MS. SINGER-BLUMBERG: Thank you.
DIRECT EXAMINATION OF JEFFREY MALKAN
BY MS. SINGER-BLUMBERG:
Q. Mr. Malkan, what's your educational background?
A. I have my Bachelor's degree from Columbia College in
New York. I was an English major. I have a Ph.D. in
English from the State University of New York at
Stonybrook. My J.D. is from the City University of New
York and I have a J.S.M. degree from Stanford Law School.
Q. We marked already into the record your curriculum
vitae -- your resume as Charging Party Exhibit 2.
Is that a current resume for you?
A. Yes, it is.
LAW JUDGE: Just for the record, I'm handing
the witness a copy of Charging Party 2.
{Document handed to the witness}.
MS. SINGER-BLUMBERG: No, he handed -- you
handed it -- am I supposed to bring them up?
LAW JUDGE: No, that's fine. That's fine.
MS. SINGER-BLUMBERG: Okay.
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LAW JUDGE: You ref- -- let's go off the
record for a second.
{There was an off the record discussion}.
{Back on the record}.
LAW JUDGE: Let's go back on the record.
Go ahead.
BY MS. SINGER-BLUMBERG:
Q. So, you have a copy of what's been mark- -- of what's
been entered into the record as Charging Party Exhibit 2.
A. Yes.
Q. Is that your current resume?
A. Yes.
Q. Okay. Thank you. And you were first employed by U.B.
when?
A. In 2000.
Q. In 2000.
A. The fall of 2000.
MS. SINGER-BLUMBERG: And can we show a copy
of Charging Party 1? I have extra copies if it's easier
for you to have one and he can refer --
LAW JUDGE: Sure. It's easier if I don't
have to keep handing them to him, but --
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MS. SINGER-BLUMBERG: Okay.
LAW JUDGE: -- it's easier for me. Now, for
you to get up and keep walking --
MS. SINGER-BLUMBERG: That's okay.
I'm showing you what's been entered into the
record as Charging Party Exhibit 1, which we've marked as
your 2000 appointment letter.
{Document handed to the witness}.
THE WITNESS: Yes.
BY MS. SINGER-BLUMBERG:
Q. Can you explain in what capacity you were employed by the
University of Buffalo?
A. The written -- the -- the -- I was hired as a clinical
associate professor and the job was -- was created in
order to provide the school with a director of the
research and writing program. So, this was what the --
before I was hired, the faculty decided that a full-time
permanent member of the faculty should be in charge of
the research and writing program and because no one on
the faculty was either willing or qualified to do it at
the time, they decided to do a national job search for
this position and I was the person hired.
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So, my academic rank was clinical associate professor
and it was also -- it was also understood that I was to
have the administrative responsibility of being director
of the research and writing program.
Q. And what is the interplay between the two titles?
A. One is a faculty appointment and the other is an
administrative appointment.
Q. Okay.
A. And so on the faculty side I was responsible for teaching
a regular courseload -- load of twelve credits. That's
the regular courseload of a -- of a -- of a full-time
member of the faculty.
On the administrative side I was supposed to have --
I was gonna have the duties of being responsible for
hiring and supervising and training members of the
research and writing faculty. As an offset for my
administrative duties, the dean promised me that in
future years I would have three credits removed from my
teaching load, so I'd only -- I would only be teaching
nine credits.
He also promised me that I'd be able to broaden my
teaching responsibilities in future years, so I wasn't
exclusively teaching legal writing. I'd also be teaching
other doctrinal courses. So, at the outset; however,
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because of their restraints of current faculty at the
school, he told me that I would have to teach exclusively
research and writing and also at the beginning I didn't
receive any courseload reduction. So, that's why the
letter says -- I -- at the beginning I was gonna teach
two sections of research and writing each semester, which
was the regular -- the same as the instructors taught,
but in the future he promised me that that would be
reduced, which he ultimately did as over the subsequent
years we added members to the research and writing
faculty.
Q. And how many members were there when you first joined it?
A. At -- when I started there were four full-time
instructors plus me for a total of five people teaching
the program and so we had a total of ten sections of
research and writing.
Q. And did that fluctuate from year to year?
A. Yes, it increased -- I don't have the exact recollection,
but we added an additional instructor a couple of years
later and then finally it -- we added another instructor,
so by the end of my tenure as director of the program in
2008, we had six full-time instructors plus me for a
total of seven teachers in the program.
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We were running thirteen sections of research and
writing for a first year class of approximately 240
students. So, each instructor taught two sections, two
times six equals twelve, and my section was thirteen.
Q. Okay. And the other people in the research and writing
program that were providing these classes, what title did
they hold?
A. They were instructors.
Q. What's your understanding of that title? Can you
elaborate what that --
A. Right.
Q. -- title means?
A. There is a very important distinction in the faculty
between full-time members of the voting faculty and other
people who teach in the law school. The other people --
part-time teachers in the law school are called adjuncts.
Full-time teachers in the law school would be
instructors. But neither the instructors nor the
adjuncts are considered to be members of the faculty.
They're not allowed to attend faculty meetings or vote
faculty meetings -- at faculty meetings.
Another difference is that instructors and adjuncts
are hired to teach a specific course. So, when the law
school hires an adjunct they might hire an adjunct to
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teach secure transactions and that's what their teaching
responsibility is. The research and writing instructors
are hired to teach research and writing and that's
what -- they are limited to that.
Other faculty members have a -- their courseload is
defined by the number of credits they're responsible for
teaching, so at -- at -- like other faculty members in
the law school, I was hired on the basis of my interests
and my qualifications and -- and there was a certain
expectation that I would teach writing courses and
intellectual property courses, but as far as like what
exactly I would be teaching year to year, that would be
open to negotiation between me and the vice dean for
academic affairs.
So, my course -- my teaching responsibility is
defined as twelve credits a year, just like -- and every
other member of the clinical faculty and the tenured --
and tenured tract faculty.
Q. Okay. What were the appointment terms for these other
instructors?
A. Throughout the time that I was the director the
instructors were on what -- what you refer to as capped
contracts. They were only allowed to be at the law
school for a total of three years and they received a
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sequence of three one-year contracts, renewed annually,
and after the -- the -- after the initial appointment and
the two subsequent renewals, they weren't supposed to be
eligible for further reappointments, so they were what we
call short-term contracts. Over the years the dean at
the time, Nils Olsen -- through my persuasion and
controlling of him I -- I -- I let him renew some of
these people beyond the three-year terms, but he was only
doing that sort of at his -- at his own discretion as --
as the dean and it wasn't something that the faculty had
ever formally approved.
Q. And were you involved in the hiring of these instructors?
A. Officially these -- these instructors are -- were what
are -- what are called detainal appointments. In other
words, they're not appointed by the faculty. They're
appointed by the dean under his administrative discretion
and responsibility; however, he would delegate that job
to me and I would always enlist the assistance of whoever
the vice dean for academic affairs was at the time.
So, I would do the initial screening and then I would
confer with the vice dean of academic affairs and I would
consult other faculty members if anybody was interested
in participating in the hiring process, but usually there
wasn't a whole lot of interest in these -- in these
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positions. So, we would interview the candidates -- we'd
screen the candidates, interview the candidates and make
a recommendation to the dean, which he would always
follow -- he -- he always followed my recommendation in
hiring. So, it was done under his authority.
It's diff- -- I mean, it's different from faculty
appointments in that faculty appointments are hired
through the faculty appointments committee and faculty
hires go to the entire faculty for a vote and -- and then
the dean, you know, extends the offer to the candidate,
but only after the faculty has both screened and
interviewed and voted upon the candidates. The faculty
never actually met these candidates at all unless if I
somehow managed to get them to attend an interview and
then I would solicit their feedback.
Q. Okay. Were you involved in the renewal decisions as well
for these instructors?
A. Yes. I was -- I mean, it was -- it was my responsibility
to ensure that they were, you know, doing their job and
fulfilling their responsibilities, so I was the person
who would find -- you know, signal to the vice dean
whether there were any problems with any of the
instructors; however, the amount of review that we ever
did with these instructors was somewhat limited because
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they were on capped contracts, so there was never any
point at which we did a very thorough review of the
candidates.
It was after -- going into their third year they were
basically going to be terminated anyway automatically, so
we did the year to year and -- year to year oversight of
them and, you know, reviewed their performance at the end
of every year, but we never did any kind of overall
assessments of whether we wanted to keep them at the law
school.
Q. Now, what were your duties as clinical associate
professor?
A. Well, as -- the -- the instructional part of my job
involved teaching at the -- initially teaching two
sections of legal writing as I mentioned before. By the
time I was at the end of my time at the law school I
taught the one section -- one section of legal writing
and usually I -- my favorite course is copyright law, so
I'd usually teach one section of copyright law and I
often taught a sem- -- some type of intellectual property
seminar. At the very -- my very last year at the law
school I also taught an advanced writing course in
contract drafting.
Q. If I can draw your attention back to -- and I have
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extras, so you can just hold onto these as we go -- to
the resume that we just referred to, which is Charging
Party Exhibit 2, on the second page -- or on the third
page is a list of the courses that you taught at the law
school?
A. Yes.
Q. And other than the research and writing, the first listed
course which you list there from 2000 and through 2009,
are these other courses within the research and writing
area?
A. The only one that's within the writing area is advanced
legal writing contract drafting, so that would be an
upper division writing course. The rest were basically
in the intellectual property area. The only straight --
like doctrinal -- straight doctrinal course was copyright
law. The others were seminars or colloquia.
Q. Okay. When you were hired who interviewed you for your
position in 2000?
A. I was treated just like any faculty candidate. I went
through the entire faculty hiring process, so what that
meant is first the faculty appointments committee
selected me for an interview. I was invited to an on
campus interview. It -- it -- that was a two day affair.
The evening of the first day I went out to dinner with a
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group of faculty members and they sort of interviewed me
over dinner.
The next day I spent the morning visiting various
faculty members in their offices. So, usually two or
three faculty members gather in an office and they spend
half an hour to forty-five minutes talking to the
candidate and so you -- you go from office to office
meeting faculty members. Then at lunch you give a
presentation, which is usually referred to as a job talk,
where you give an address to the entire faculty on some
interested -- on some topic of your int- -- of your
choosing and usually you get forty-five minutes to -- to
talk to the faculty and then there is usually half an
hour to forty-five minutes of a question and answer
session after your presentation.
Then following the -- the job talk and -- and lunch
then -- then you would resume -- I resumed office
interviews, going and meeting additional faculty members
in their offices, and the last interview of the day is in
the dean's office where I met Dean Nils -- Dean Nils
Olsen and spent some time talking to him about the job.
So, this was exactly the same process that -- that's
hired for -- that's followed for clinical professors and
tenured tract faculty.
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And subsequent to my on campus interview then the
faculty met as a whole with a recommendation from the
appointments committee for my appointment and the faculty
voted to offer me the job and Nils Olsen conveyed the
offer to me, which I accepted.
Q. And you worked out the details of your dual appointment
with who?
A. With Dean Olsen.
Q. Now, your initial contract, which you have as Charging
Party 2 states that it was --
MS. VANCE: I'm sorry. What --
MS. SINGER-BLUMBERG: -- I'm sorry --
MS. VANCE: -- what exhibit?
MS. SINGER-BLUMBERG: -- Charging Party 1.
I'm sorry. Charging Party 1. Charging Party 1 is your
2000 appointment letter.
BY MS. SINGER-BLUMBERG:
Q. It states in Paragraph 3 that your appointment will be
for a three-year term with reappointments for a second
and then -- then in the fifth another third year term.
Did you come up for review and reappointment after
the first three year?
A. What -- what -- what Dean Olsen explained to me was that
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I was gonna have the same exact review process as the
clini- -- as the clinical professors of the -- as the
other clinical professors at the law school had and that
this profess- -- this process was parallel to the process
that was used for tenured -- tenure tract faculty -- for
university tenure.
So, the process consisted of an initial three-year
appointment -- appointment, a review after the three
years, which is usually very -- almost perfunctory, at
least it was in my case. It was just a -- we -- there
wasn't any formal review, just a review done by the dean
and then he issued me the second three-year contract.
So, these two con- -- contracts together -- the six year
period is usually referred to as your probationary
period.
Following the end of the probationary period the
entire faculty reviews the candidate to decide whether
you were gonna be offered a permanent appointment at the
law school. This review process takes place in front of
a committee of the entire tenured faculty, which is
called the promotion and tenure committee.
So, that happened in my case. It didn't happen in
the fifth year as this letter states. It might have
happened in the sixth year and that was April of 2006.
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Q. And what -- what was the process for that review?
A. The process was that I was required to prepare a doss- --
what's called a dossier, which contains materials on my
teaching, service and scholarship -- in those three
areas. I had to write an essay to describe my teaching
interests and what I've done in teaching and my service
to the law school, which was mostly administrative,
legally -- running a research and writing program and the
scholarship that I had written at the law school and
prior and it also included samples of my teaching
materials. So, that was the part of the dossier that I
prepared.
The second part was a confidential part, which I
never got to see, but letters were sent to all of my
former students over the past six years asking them to
submit comments about me. Every faculty member in the
law school was -- was invited to submit comments about me
if they had any. The person who was the point person for
doing this was Vice Dean Sue Mac- -- Vice Dean Sue
Mangold, who was the academic dean at the time. She told
me that she spoke to all of the legal writing instructors
and asked them if they had any comments about me and
invited them to write comments if they chose.
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And so this entire dossier was put together and
submitted to entire promotion and tenure committee and
then at a separate faculty meeting -- or sep- -- a
separate meeting of the promotion and tenure committee,
which was solely devoted to me, the faculty debated my
reappointment and voted to appoint me and promote -- to
promote me to clinical professor and to extend the
long-term contract to me, which is known as -- in this
profession as clinical tenure. And subsequent to this I
had a -- you know, a guarantee that this was supposed to
be a permanent appointment to the faculty.
The only difference between the clinical appointments
process and this -- a promotion process and the -- and
the tenured -- the university tenure promotion process is
that to get university tenure the dossier then goes up to
the presidential review board and the university reviews
it and approves it. So, my dossier stopped at the law
school. That was -- that's the main difference between
the two processes.
Q. Okay. Now, at the time that you had this review in 2006,
a new appointment letter was issued for you?
A. Yes.
Q. And did you -- were you involved in the drafting of this
appointment letter --
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A. Yes.
Q. -- I'm showing you what's been introduced into the record
as Charging Party 3.
A. Yes, I was involved in the negotiating and drafting of
this, so this isn't a boilerplate contract. This is
something that was carefully considered between me and
Nils Olsen and Vice Dean Sue Mangold.
Q. And do you know why the A.B.A. standards are attached to
the contract?
A. Yes, that -- I mean, the history is that I was promised
the same deal that the clinical professors had, but the
clinical professors over the years had been rather
passive about what their job security was and what they
were entitled to and so it sort of fell to me to clarify
all this.
At the time when I was, you know, considering whether
to accept this appointment and make a long-term
commitment myself to the law school, I wanted to make
sure that I wasn't going to be facing any problems over
the subsequent years, so the A.B.A. standard that governs
clinical appointments is called Standard 405-C and that
was attached to my contract as part of the contract in
order to reflect our intent that the secure- -- job
security promised by the A.B.A. standards was gonna be
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what I was actually receiving in my contract.
And we went over the A.B.A. standards together and
to -- to the extent that there were any ambiguities or
open language -- or open text or language in the -- in
the A.B.A. standards, we wanted to define what this meant
in terms of a long-term clinical contract at Buffalo Law
School. So, that's why -- that's why the standards are
attached to the contract and that's why the contract
references the standards.
At the time when the faculty voted on my
reappointment, I was told by Sue Mangold that she opened
the meeting by reading the A.B.A. Standard 405-C to the
promotion and tenure committee and explaining to them
that that's what they were voting on, so that they should
take this seriously, that this was going to be the type
of job security I was going to be receiving, which the
key term in there is reasonably similar to tenure.
So, this is basically, again, a permanent appointment
and there -- the faculty debated this and voted upon it
with the full knowledge of what they were doing.
Q. Okay. Now, the appointment letter speaks to the fact
that it's a three-year contract with a two-year
extension. Was there -- on -- on -- what was the
understanding about review before the two-year extension
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would -- would be implemented?
A. The A.B.A. Standard 405-C requires that the law school
provide the clinical professor with a sequence of five
year contracts, which are presumptively renewable. It
can only be denied -- renewable can only be denied for
good cause and SUNY's pol- -- trustees' pol- -- the
policies of the trustees of SUNY only provide for three
year contracts, so what Nils first tried to do was to get
the A- -- to -- to get the SUNY central legal department
to make an amendment to the trustees' policies to allow
clinical professors at the law school to have five year
contract terms. He failed to accomplish that, so he --
in order to comply with the A.B.A. standards, he came up
with the idea of giving me the SUNY three-year contract
and guaranteeing me a two-year extension of the contract
to come up to a sum total of five years.
So, he refers to it as a five year contract with a
three year term and two year mandatory extension. And
what we understood was the extension was supposed to be
simply a ministerial action on the part of whoever was
the dean at the time, that it didn't involve any review
process at all and the dean -- the dean wouldn't have the
discretion to break the contract at that point.
Q. In the second to last paragraph of the appointment letter
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there is a discussion about the distinct nature of your
two separate appointments and, in fact, you signed to
accept two separate appointments, right?
A. Dean Olsen was concerned that we -- at this point we make
perfectly clear what I was being appointed to, that my
appointment -- academic appointment as a clinical
professor was separate and distinct from my
administrative appointment as the director of the
research and writing program, so he was not binding
future deans to retain me as part of their administrative
team if they didn't want to have me on as the director of
research and writing, but if the dean at his discretion
decided to terminate my tenure as director of the program
or decided to eliminate that position altogether, then I
would just go onto the regular faculty.
It's similar to any -- it -- it's similar to any
other administrative appointment in the law school in
that the vice dean for academic affairs serves at the
dean's -- the dean's discretion. If the dean wants to
pick someone new to be the vice dean for academic
affairs, that professor will simply step down and return
to the faculty as a full-time faculty member.
So, he wanted to make that crystal clear and he
actually provided two signature lines for me to make
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that -- that differentiation or distinction.
Q. Okay. Now, we entered this follow-up document as
Charging Party 4 in the record. There appears that there
was a -- some confusion in -- in how your new title with
your promotion was recorded in terms of the personnel
paperwork that was filed on your behalf.
Can you just explain to us -- in the document it is
clear on its face, so were you aware -- were you aware
that this was going on or is there -- was there a change
in your appointment in 2006 in terms of your title --
your clinical title?
A. Yes. Just as when a university tenured professor is
granted tenure at the law school, there is -- it goes
along with the promotion from associate professor to full
professor. In April 2006 when the faculty voted to give
me the long-term contract, I was at the same time
promoted from clinical associate professor to full
clinical professor.
Apparently Nils Olsen didn't properly notify the
administration cent- -- the central university
administration of what he had done and what the faculty
had done, so I -- I assumed that this was a clerical -- a
clerical correction by Nils and he never informed me of
this, but that's what this is.
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Q. Okay. When did Nils Olsen step down as dean and Makau
Mutua take over?
LAW JUDGE: Let's go off the record.
{There was an off the record discussion}.
{Back on the record}.
LAW JUDGE: Back on the record.
BY MS. SINGER-BLUMBERG:
Q. When did the -- did the dean change in the law school?
A. I -- I wasn't -- you know, I wasn't totally aware of
when -- of when Nils Olsen stepped down. Apparently --
and this memo that you just gave me before is dated
September 3, 2007 and it says that Nils Olsen had -- had
already told the administration of the university that he
was stepping down as dean.
All I knew from my perspective is sometime during
2--- -- the fall semester of 2007 it became known to the
faculty that Nils Olsen was stepping down for reasons of
health -- personal reasons and reasons of health and that
the university was gonna launch a search -- a new nation-
-- a nationwide search for a new dean.
We didn't know -- weren't consulted as to who was
going to be stepping -- who was going to be running the
law school in the interim because it also became known
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that Nils was stepping down in mid year, so there was
gonna be an interim dean appointed on -- as of January 1,
2008, but we didn't know that it was gonna be Makau Mutua
till pretty late in the game, like I think it was
December of 2007 before we finally found out.
Q. Okay. So, let's turn our attention now to what happened
in March of 2008. This is a copy of what is attached to
the Petition, but entered separately as Joint Exhibit 2,
which is a series of e-mails from Cheri Tubinis to you --
or at least starting with those.
Who is Cheri Tubinis?
A. She was Nils Olsen's secretary and -- and when -- when
Makau Mutua became dean she -- he inherited her as his
secretary.
MS. VANCE: I'm sorry. I couldn't hear that
last --
THE WITNESS: He inherited -- he inherited
Cheri Tubinis as his secretary initially.
LAW JUDGE: Hold on a second.
Tubinis, T-U-B-I-N-I-S.
BY MS. SINGER-BLUMBERG:
Q. Can you tell us what happened -- can you -- can you walk
us through what happened with the series of e-mails that
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came out in March of 2008?
A. Can I provide a little bit of a background, so that this
can make sense?
Q. Okay.
A. It's a little bit complicated. I was on a committee
called the A.P.P.C., the Academic Planning and Program
Committee, which is the law school equivalent of -- of a
curriculum committee. One of the things we were charged
with doing was reviewing the research and writing
program. When Makau Mutua came in as dean, I had high
hopes that I was gonna succeed with him in doing
something that I hadn't able to do with Dean Olsen, which
was enhancing the job security and salaries of the legal
writing instructors.
So, I told the instructors that they should set up a
meeting with Makau Mutua directly and present their case
to him. They did this -- and without me present -- so,
they did this -- I think during the week of February 7,
2008 they met with Dean Mutua and I think with Vice Dean
Jim Gardner. Follow-up to that was a meeting of the
A.P.P.C. I think it was probably around February 20,
2008 and on the agenda was the research and writing
program, so I assumed that we were gonna talk about, you
know, the issues of staffing the legal writing program
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and an upgrade in the status and salary.
Instead what Dean Mutua did was he told the committee
that he had spoken to the research and writing
instructors and that they were very unhappy with the
direction of the program, which really meant they were
very unhappy with me, and then he went into sort of a
very demeaning and hostile speech toward me saying that
the research and writing program was a disgrace or it was
a dark corner that the faculty had been closing its eyes
to for too long and that he was -- time for the faculty
to take it back, so I mean, I was like totally appalled
at being spoken to this way in public. I thought it was
really crude and offensive and hostile and abusive.
He also gave me a writing assignment that he was -- I
mean, he just gave me ten days to prepare a
self-assessment report about the program, the status of
the program, and also a profile of each of the individual
teachers, so he could know who he was dealing with the
next time he had to speak to these instructors. So, I
did that assignment for him. I finished it, I think it
was February 29th. I'm not sure exactly. It was ten
days later and then I didn't hear anything from him after
that.
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Meanwhile the legal research and writing program was
engaged in what we call moot court. This was like the
high point of the spring semester where we are --
students are giving their appellate arguments in front of
panels of outside judges, so it's a pretty big
administrative and logistical job to make all this
happen.
After this happened it was spring break and I still
hadn't heard from Dean Mutua in response to my -- the
document I had given him, which I expected that we would
discuss and -- and I could explain what I had been doing
with the program, respond to what the instructors said
about me or hadn't said about me, and just have a -- you
know, a useful dialogue about where we were going with
this.
In the middle of spring break -- well, I should say
at the beginning of spring break, Monday, March 10th, I
was out of town and I got this e-mail from Cheri Tubinis
saying that she wanted -- that Dean Mutua wanted to meet
with me in the next few days and if I'm out of town that
we should have a phone meeting. I said -- answered her
and said, you know, I'm out of town, let's meet when
we -- when I'm back. I didn't really understand what the
urgency was. He insisted on, you know, talking to me on
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the phone and I said let's talk in person next week. I
mean, we sort of reached an impasse on this.
So, on Wednesday I received this e-mail -- Wednesday,
March 12th, I received this e-mail from Makau Mutua
request -- subject line: Request for your resignation as
director. And he basically gave me 24 hours to resign or
be fired. He said quote "you will stand relieved of your
duties as director if I do not hear from you by noon
tomorrow". So, I didn't think it was appropriate to do
that. I didn't feel -- I felt like I was being bullied
into resigning and I said that I wasn't going to resign.
I -- I responded to him by e-mail that -- that afternoon,
Wednesday, March 12th.
So, the following day, Thursday, he sent me the
e-mail saying that quote "this is to confirm to you that
you have been relieved of your duties as director of the
research and writing program as of noon today". And so
that was what the sequence of the e-mails was about.
Q. Okay. Let me go back -- well, strike that.
In that e-mail of March 12th -- attached to what you
just were reviewing -- in Makau's e-mail to you he says I
have no choice but to let you know that I'm removing you
as director. I have concluded the program to move in a
different direction under new leadership. I'm sorry.
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That's in his request -- no -- you will stand relieved of
your duties of -- I'm sorry.
So, the second to last page.
A. Right.
Q. He says to you he wants you to resign because the program
is going to move in a different direction under new
leadership?
A. Yes.
Q. And you said that you wrote a report on the status of the
program?
A. Right.
Q. Was -- was the -- was there in contemplation in these
discussions and memos between you and Makau before this
e-mail was sent to you that it was gonna move in a
different direction?
A. No.
Q. Okay.
A. We -- we didn't really have any dialogue about it. He
just asked me to write a report and I tried -- I think I
wrote a very thorough report explaining what I had been
doing with the program, trying to inform him and educate
him about how the program was structured, what I thought
the problems with the program were, what my
recommendations for where the program should go in the
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future.
And I also wrote up, like I said, an assessment of
each of the instructors, which it -- which I based on
re-reading all of their course evaluations over the past
two years, so this was quite a substantial document. It
took me quite a bit of time and I just assumed that we
were going to discuss it. It seemed like -- it seemed to
me really unfair and unprofessional to demand this kind
of report from a person on such a short deadline and not
even to -- I don't even know if he read it, but if he
read it he certainly didn't give me a chance to discuss
it with him and that's why I felt -- in combination with
the way he had spoken to me in public at the A.P.P.C.
meeting combined with his disregard of the report he
demanded me to write, I felt that he was being
unprofessional and hostile and I -- I -- I wasn't
inclined to resign in the middle of spring break by noon
tomorrow just because he asked me to. I had never heard
of anything like that.
I would have resigned if he had spoken to me and
explained to me some civil and acceptable reason because
I -- I had no desire to stubbornly cling to a position
and work for a man who didn't want me to be in the
position. I would have turned the program over to
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someone else, but...
Q. Okay. Do you know why this had to be done over spring
break?
A. No. In fact, the bulk of the legal writing work for the
spring semester was done. I mean, the program was
basically finished for the year. The only remaining
assignment we had for the students was a rewrite of their
appellate briefs, so at that point we were all, you know,
sort of -- you know, at that point the pressure was
really off and we had all the time in the world to -- to
discuss things, talk about them, plan and strategize for
next year. There was certainly no reason to demand my
resignation in the middle of spring break.
Q. Let me go back to -- to your comment about the report
that you said you submitted. You indicated that you had
talked to Nils and you were hoping that Makau would get
on board with expanding the length of the -- of the
instructors' appointments and increasing their salaries.
Was there also a discussion with either Nils or Makau
about modifying the pro- -- the program itself -- the
research and writing program?
A. No --
Q. Was that on the table.
A. -- we never had any -- any discussions about changing the
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curriculum of the program. I had recommendat- -- I had
recommended to Makau and to Vice Dean Sue Mangold -- I
never spoke direct -- directly to Nils Olsen about this.
I strongly recommended extending the program into the --
into the second year of law school. I thought that we
should have a third semester of legal writing. We never
had any discussions at all about changing the curriculum
of the program. It was just nothing that anybody ever
wanted to talk to me about, but I would have been happy
to talk to anybody who wanted to about changing of the
sequence of assignments or the way the -- the way the
skills were taught.
What was on the table and which I -- what was on the
table with both Nils Olsen and with Makau Mutua was the
staffing of the program. That was my number one
priority. I wanted to have instructors with renewable
contracts and I wanted to have instructors who had
equitable pay and so that was something where I had -- I
had hit a brick wall with Nils Olsen on. He just, you
know, didn't see it my way and I had great hopes that
Makau Mutua would be more liberal and more generous with
the -- with the writing faculty.
Q. Okay. And, again, to clarify you said that had you had a
in-depth discussion with Makau about you -- his desire
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for you to resign your position, you said I -- I might
have resigned my -- or I would have resigned my position
as director of research and writing, not as clinical --
A. Right. If he --
Q. -- professor?
A. -- if he had told me that I want to have a new person
look at this or I don't think you work well with, you
know, my vice dean for academic affairs would -- you
know, would you resign and move onto some other projects
for the law school, I would have said yes. And I
certainly recognize those are valid reasons.
Q. I'm going to show you what's been introduced into the
record as Joint Exhibit 3. This is an e-mail that Cheri
Tubinis sent out on behalf of Makau to the fac- -- to
the -- to all the faculty?
A. Yes, it looks like it went to the entire voting faculty.
Q. Do you know -- I don't know if you recall now -- if
March 13th was during spring break or after spring break
was over?
A. That was the same day -- that was Thursday of -- that was
Thursday of spring break, so -- it was the day after he
informed me that I was being removed as of noon on
Wednesday, so this was Thursday he sent this e-mail
out -- the next day.
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Q. While spring break was still going on?
A. Yes.
Q. Okay. And when you returned the following week to --
to -- school was back up and running, did -- was there
any discussion with any of your colleagues about this
e-mail that Makau had sent out?
A. There -- there was -- generally I felt that people were
embarrassed to even talk to me. I felt that it created
an inference that some scandal had been uncovered and
that I was being unceremoniously removed in order to hush
up some problem.
It was -- I mean, this was highly unusual. Nobod- --
nobody in the school -- certainly not in my eight years
there -- nothing like this had ever happened before.
Q. Nothing like this meaning what?
A. Somebody being removed summarily from their position
in -- in such a -- I would say in a -- almost as an
emergency measure in the middle of the semester without
their consent.
Q. Did the issue go before the A.P.P.C. -- that committee
that you spoke about?
A. I tried to bring it up before the committee, but Makau
Mutua wouldn't allow it to go on the agenda. I tried to
raise it in the first we met at -- following the -- the
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first time we met as a group following this incident and
he basically told me to shut up, I'm trying to -- he said
I'm trying to run a meeting, be quiet.
Q. After spring break did you ever meet with the dean to
talk to him about your removal as director?
A. No.
Q. Did he ever provide you with anymore detail in terms of
the reasons for your removal other than what was in the
e-mail that he sent to you and the faculty?
A. No.
Q. What was the status of the research and writing program
in March 2008 when you were removed?
A. Well, the status was status quo. When I was removed the
program -- we finished the spring semester and went into
the next year 2008 -- '0- -- 2008 and 2009 with exactly
the same instructors and exactly the same curriculum.
The difference was that in the interim he had
promo- -- Dean Mutua appointed Professor George Kannar to
be -- oh, the -- the -- the way he put it was to keep an
eye on the program, so he was effectively acting in my
capacity as -- as a -- sort of an interim director.
Q. Okay. If the program was actually going to be changed,
do you know if the dean could unilaterally do that on his
own or would it require a faculty -- a faculty vote?
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A. Well, I don't think there is anything that would preclude
the -- the dean, you know, doing whatever he wanted to in
his administrative capacity as running the law school,
but in point of fact I don't think that Dean Mutua is an
expert on legal writing -- or legal research and writing
or had or has any particular ideas about how it should be
taught, so the way we approached it was to delegate the
matter to a committee to study the -- to study the
program and to make recommendations for -- for change.
So, while I was still involved in the program in the
earlier part of the spring semester of 2008, we had a
subcommittee on the A.P.P.C. to study research -- the
research and writing program and it was comprised of me,
Professor Rebecca French and Professor Errol Neidinger.
That's E-R-R-O-L N-E-I-D-I-N-G-E-R. The three of us
were working together.
Since I was the one who was, you know, most familiar
with the program I sort of guided that subcommittee to
start focusing first on the staffing of the program and
subsequently we planned to also talk about the
curriculum. When I was removed as director I stopped
participating in that subcommittee and I assume that
Professors Neidinger and French continued to work on the
project.
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Q. Okay. And let me show what's been entered into the
record as Charging Party Exhibit 5, which are the minutes
of a May 7, 2008 law school faculty meeting.
Who keeps the minutes of the meetings?
A. For this meeting it was either -- well, it was either
Cheri Tubinis, the dean's secretary, or Tim Conti,
C-O-N-T-I, who was also an administrative assistant in
the dean's office. I'm not sure which one was keeping
these -- this set of minutes.
Q. Do the minutes get -- then get disseminated to the
faculty at some point?
A. Yes.
Q. Okay. And if I can draw your attention to No. 5 of the
minutes -- I'm sorry -- No. 4 of the minutes. It
introduces a resolution. Can you tell us -- to appoint
someone to be charged with the responsibility to evaluate
the current research and writing program, and to the
extent determination is made, the changes in the program
are necessary to propose changes -- is this something
that came out of the A.P.P.C. subcommittee
recommendation?
A. Yes. I -- I was -- it -- it became clear to me that
Dean Mutua didn't want me to be participating on the
A.P.P.C. anymore, so I sent him an e-mail saying that I
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wasn't sure what my role was on the A.P.P.C., since I was
no longer director of the writing program that I wouldn't
participate in any of these further discussions unless
he -- if he specifically asked me to.
So, at this point I was no longer on that committee
or involved in this process, but this came out of the
A.P.P.C. as a recommendation to the full faculty.
Professor Steinfeld, I think, actually drafted this
resolution and it was -- it was -- what they resolved to
do was to appoint somebody to study the matter and to
make recommendations for changes to the extent that
changes to the program are deemed necessary.
So, this is where the matter was left at the end of
the spring semester of 2008.
Q. Okay. So, at that point it wasn't clear whether there
would be any change in direction of the program?
A. Exactly. This was -- this was a -- basically
commissioning a study to see what's going on with the
program and where it should be going. These -- these
types of programs are always sort of a work in progress,
so over the years there are changes in the program and
adjustments and this was a -- sort of a checkpoint which
gave everybody a chance to look at what we're doing and
to see whether we're satisfied with our current efforts
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and if not what could be done to improve the program,
what resources the law school should be devoting to the
program and so on.
Q. Okay. And you said that George Kannar was appointed to
sort of watch over this process?
A. Yeah, the -- this -- this resolution gave the dean, you
know, instructions to appoint somebody to do it and the
person that the dean appointed was Professor Kannar.
Q. Okay. And I'm going to show you what's been entered as
Charging Party Exhibit 6. Is this how the faculty were
notified that George Kannar was the one who was appointed
per that resolution?
A. Yes. I mean, the resolution asked him to undertake the
study and also to sort of step into my shoes and
supervise the legal writing program in the interim, which
is what he did throughout the 2008-09 academic year.
Q. Now, do you know -- strike that. I'm going to show you
what's been marked into the record as Charging Party
Exhibit 7, which is the proposal -- which is George
Kannar's report to the -- to the law faculty?
A. Yes.
Q. It's dated April 15, 2009. Now, in the announcement that
Makau sent out in June of 2008 he indicated that George
would present his -- the results of his study in a
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proposal in the fall of 2008.
Do you know if that actually happened in the fall of
2008?
A. Yeah, it didn't -- it did not happen. George was a
little bit slow picking up on this, I think, and it took
him the entire year to get to this point, but there
weren't any other reports to the faculty on the -- on
the -- on the legal writing program.
Q. Until this document from April 2009?
A. Correct.
Q. Okay.
MS. VANCE: May I have the last -- the last
question and answer read back, please?
LAW JUDGE: Sure.
{The last three questions and answers were read back by
the stenographer}.
BY MS. SINGER-BLUMBERG:
Q. Do you know if the proposal that George Kannar presented
to the faculty actually was voted on and accepted by the
faculty?
A. Yes, it was.
Q. Okay. Now, I don't have the minutes of who was present
at this faculty meeting, but do you recall if you were
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present at the meeting in April 2009 when this was
presented?
A. I was present.
MS. VANCE: Can we go off the record for a
second?
LAW JUDGE: Sure. Let's go off the record.
{There was an off the record discussion at this point in
time}.
{Back on the record}.
LAW JUDGE: Let's back on the record.
FURTHER DIRECT EXAMINATION
BY MS. SINGER-BLUMBERG:
Q. So, let's go back on the record to clarify. The document
that you have that's marked as Charging Party 7 indicates
at the top that it's a proposed faculty resolution
recommended to the faculty for its early adoption by the
A.P.P.C. on April 15th. So, the A.P.P.C. voted on it
first and then it came to the full faculty?
A. Yes. This is an example of bad legal writing.
Q. Okay.
A. April 15th was the day the A.P.P.C. decided to move
forward with this. It went to the faculty on April 22nd.
Q. The 22nd.
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A. Yes.
Q. So, do you recall whether this would have been --
Charging Party 7 would have been sent to the faculty
before the faculty meeting on the 22nd?
A. Yes, the faculty had this. This was -- I mean, the cover
page was provided by George as legislative history and
the actual statute, so to speak, that was being proposed
was on the following page -- the faculty resolution. So,
George was explaining what the faculty was going to be
voting on. That's -- that's the cover page.
Q. And then your -- okay. I see there is a proposed faculty
resolution, which was what -- actually voted upon at the
April 22nd meeting?
A. And that's what appears in the fac- -- in the -- in
the --
Q. In the minutes?
A. -- in the faculty minutes.
Q. Okay. And I'm going to show you -- I don't have an extra
copy of this one -- what's been entered as R-4.
A. Yes.
Q. That's the minutes of the faculty meeting of April 22nd
that you just referred to?
A. Yes.
Q. Okay. And within that there is a reference to the
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resolution that's attached to Charging Party 7?
A. The -- it's the second page. Correct.
Q. Okay. And you were present at this -- at this faculty
meeting?
A. Yes.
Q. Okay. Now, this proposed faculty resolution that -- that
was approved by the faculty on April 22nd --
A. Yes.
Q. -- which is attached as Page 2 and 3 to Charging Party 7,
what's your understanding of -- of what it was doing to
the research and writing program, if anything?
A. My understanding of what this resolution did was to --
basically to create another layer of bureaucracy. A
person who was -- who was -- was -- was going to be
appointed a tenured or clinical professor to be
responsible for the pre-existing programs. It didn't say
anything about changing the pre-existing programs.
And that -- that's what -- essentially what George
was doing was recommending that either he or his
successor be given a permanent administrative position in
the -- in the dean's office to be in charge of moving
forward with what he had been doing that year and which
he hadn't really either begun or completed.
Q. Okay. And in what you refer to as the legislative
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history, the first page --
A. Yes.
Q. -- George states that it does not propose the creation of
any new programs for research and writing. Is that -- is
that what was discussed at the faculty meeting?
A. There was really very little discussion of this because
no --
MS. VANCE: Where are you referring?
MS. SINGER-BLUMBERG: I'm referring to the
first page of Charging Party 7. This -- the last
sentence of the second paragraph.
THE WITNESS: Yes, George presented this.
He was -- I think he was somewhat surprised that nobody
had any comments or questions about it. He just asked --
was silent for a while -- does anybody have any questions
about this, and I don't know if the fact that I was in
the room inhibited the conversation at all or -- it
was -- it was just basically authorizing the dean to go
ahead and appoint someone to either -- either to --
either to make his job permanent or to appoint someone
else to -- to -- to take over his job --
MS. SINGER-BLUMBERG: Okay.
THE WITNESS: -- but it did not -- I mean,
he said that it does not propose the creation of any new
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programs.
BY MS. SINGER-BLUMBERG:
Q. Now, you received a nonrenewal letter, which we've
entered into the record as Joint Exhibit 7, from Makau on
August 28, 2008 or thereabouts?
A. Yes.
Q. And this is a copy of that letter?
A. Yes.
Q. Prior to receiving this letter did the dean ever discuss
your non-renewal status with you?
A. No.
Q. Were you aware that your renewal was under consideration?
A. I knew that the dean was supposed to issue a -- an
extension of my three year contract as required by the
terms of my contract, so I knew I was gonna be getting
another letter. I didn't think it was gonna be a notice
of non-renewal. I thought it was gonna be a two-year
extension of my contract.
Q. But the first three years didn't expire until 2009,
right?
A. Right. So, I mean, at this -- at this point I didn't
expect to get any letter. I -- I expected sometime
during the course of the 2008-09 year I would receive a
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letter extending my contract for two years.
Q. I'm going to show you what's been entered into the record
as Charging Party Exhibit 8. These are the bylaws of the
law school faculty that were in place at the time that
you were non-renewed?
A. Yes.
Q. And I'm going to draw your attention to Page 8, No. 4.
A. Yes.
Q. Do you know if before you received a non-renewal letter
the committee on clinical promotion and renewal reviewed
your reappointment status?
A. No, they did not.
Q. Your non-renewal letter, Joint Exhibit 7, states that --
the first sentence of Paragraph 2 -- the law school
terminated the research and writing program such as it
was and is replacing it with the skills program.
Now, in August of 2008 had the research and writing
program been terminated?
A. No.
Q. As of August 2008, so that we're clear, the only thing
that had happened was that a resolution had been passed
that spring before --
A. Yes.
Q. -- to review and propose any changes, if necessary?
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A. A study had been commissioned essentially --
Q. Okay.
A. -- and that's all that had been done. The study hadn't
been reported back to the faculty. The faculty hadn't
discussed the study or voted on any changes under the
study.
Q. The non-renewal letter also states in the second
paragraph that all of the instructors in the defunct
program have been non-renewed and, therefore to be
consistent, since you have been an instructor in the
program you're being issued this non-renewal notice.
Were you an instructor in the research and writing
program?
A. No.
Q. Okay.
A. I mean, in the generic sense an instructor being someone
who teaches, I mean, every professor in the law school is
an instructor providing instructions, but as far --
instruction, but as far as my job -- my academic
appointment goes, I was a clinical professor. I was
never a research and writing instructor, so the terms of
their appointments had nothing to do with mine.
Q. How did your removal as director in March impact your
duties as a clinical professor, if at all?
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A. It resulted in my losing the three credit allowance
toward -- off of my teaching load as compensation for my
administrative responsibilities, so I was required to
teach three additional course credits.
MS. VANCE: Could I have that question and
answer read back, please?
LAW JUDGE: Okay. Go ahead.
{The last question and answer was read back by the
stenographer}.
MS. VANCE: Thank you.
BY MS. SINGER-BLUMBERG:
Q. So, those three additional course credits you didn't pick
up in March though of 2008 -- midterm?
A. I picked them up in the spring of 2009.
Q. Okay.
A. In the spring of 2008 I taught six course credits. In
the spring of 2009 I taught six course credits.
Q. The other people in the program you said were
instructors, do you know if they were non-renewed as
well?
A. When -- this requires a little bit of background. Can I
explain? When the decision was made to go to long-term
contracts, initially under Dean Olsen and then
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subsequently under -- under Dean Mutua, there was a
debate about whether the old instructors could be
grandfathered into the improved jobs or whether we would
have to do a national job search and make them compete
for their jobs against outside candidates.
Both Dean Olsen and Dean Mutua decided that the jobs
had to be opened up to outside competition and in order
to do that the present instructors, who had all gone --
been teaching at the school for longer than three years,
had to receive non-renewal notices. These are known as
12-month notices within the law school. If they didn't
receive these notices then their jobs are automatically
renewed for a subsequent term -- a subsequent one-year
term.
So, as far as I know, in the spring of 2008 all of
the instructors received these non-renewal notices and
were also informed that they were invited to reapply for
their newly enhanced jobs.
Q. At some point after you were no longer director?
A. I was no longer director, so I wasn't directly involv- --
I was not directly involved in this -- in these -- these
letters --
Q. Okay.
A. -- or in this process.
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MS. VANCE: Could I just have a moment?
LAW JUDGE: Sure. Let's go off the record
for a minute.
{There was a short break in the proceeding at this point
in time}.
{Back on the record}.
LAW JUDGE: We're back on the record.
FURTHER DIRECT EXAMINATION
BY MS. SINGER-BLUMBERG:
Q. Jeff, let's go back for a second. You said that when you
were removed as director in the spring of '08 you were
required therefore to pick up three extra credits?
A. Yes.
Q. And you did that in the spring of '09, not the fall of
'08?
A. I was already teaching six credits in the fall of '08.
Q. Okay.
A. I mean, from year to year it would vary. Sometimes I
would teach six in -- in the fall and three in the spring
and sometimes I would flip that, so -- I already planned
to teach a copyright course in the fall, so the -- the
other three credits were in the spring and gave -- also
gave us more time to schedule it because you'd have to
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put it on the schedule in time for the students to
elect -- to do their course selections.
Q. What did you end up teaching?
A. I taught IP Colloquium with Professors Reis and
Bartholomew, so it's a team taught course and it counted
as one credit and I taught -- a new course for me was
advanced legal writing/contract drafting, which was a two
credit course.
LAW JUDGE: For the record IP, I presume, is
Intellectual Property?
THE WITNESS: Yes.
LAW JUDGE: Thank you.
MS. VANCE: Can you clarify for the record
what the A.P.P.C. is? I think -- I don't know that we
have that for the record.
LAW JUDGE: Sure. The committee -- what
does A.P.P.C. stand for?
THE WITNESS: The Academic Planning and
Program Committee or -- I'm not sure -- Planning and
Program or Program and Planning. It's those two -- those
two words.
LAW JUDGE: Okay.
SPEAKER: Academic Planning and Policy.
MS. VANCE: Could we have that for the
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record?
LAW JUDGE: The Academic Planning and Policy
Committee. Does that sound right, Mr. Malkan?
THE WITNESS: That sounds right.
LAW JUDGE: Okay. Fair enough.
Go ahead.
FURTHER DIRECT EXAMINATION
BY MS. SINGER-BLUMBERG:
Q. So, we were talking about the fact that the other
instruct- -- the -- all the instructors in the research
and writing program were non-renewed in the spring of '08
because they could not be grandfathered?
A. Right.
Q. They would have to be non-renewed and then reappointed?
A. Yes.
Q. Okay. Prior to that had you, in your role as director,
been involved in letting instructors go over eight --
eight or nine years that you held that -- eight years
that you held that position?
A. Yes, I was. But I had never let an instructor go who had
reached the point where they were entitled to a 12-month
notice.
Q. Were the research and writing instructor positions
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posted?
A. When I was the director?
Q. In -- in -- at some point after they were given a
non-renewal notice?
A. Yes. In the fall of 2008 George Kannar and Jim Gardner
undertook a process to do the job search for refilling
these research and writing positions.
Q. Okay.
A. So he --
Q. Let me stop you for a second. I'm going to show you
what's been entered into the record as Charging Party 9
and then I'm going to leave Charging Party 10 just so I
don't walk back up here.
A. Okay.
Q. So, Charging Party 9 appears to be minutes from the
faculty meeting on September 12, 2008. Is that where a
decision was made that the vacancies were going to be
posted for the research and writing instructor positions?
A. Yes. I wanted to correct what I said before as to
whether George Kannar ever reported back to the faculty.
I meant in writing. He did report back to the faculty
orally about the September 12th meeting, that they were
moving forward to advertise for the research and writing
instructor positions, and the reason he gave for moving
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forward so quickly was that they were afraid about a --
they were afraid that a university hiring freeze might
affect their ability to fill the jobs, so that they were
going to move forward as quickly as possible to do the
screening.
Q. The hiring freeze because of the budget situation?
A. Apparently.
Q. Okay. And Charging Party 10, which I also left with you,
is that the posting that went up for the research and
writing instructors?
A. Yes. This was the posting that was listed on George's --
or posted on George's behalf on the legal writing list
serve, which is a list serve that most people in the
legal writing community subscribes to. So, this is
usually the best way to get, you know, a very broad
national cross section of applicants for a job.
Q. Do you know if it actually was posted on the My U.B. or
the U.B jobs website as well?
A. Yes, it was -- it was also posted on U.B jobs. In fact,
in order to apply for the jobs the applicants were
required to fill in the application form electronically
on the U.B. jobs website. So, I -- as I recall, a
version of this advertisement is -- an abbreviated
version was -- appeared on the U.B. jobs website.
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Q. Okay. Now, in your non-renewal letter, which is Joint 7,
Makau indicated that he had -- in the -- in the second
paragraph that he had non-renewed all the instructors and
that they would be considered for instructional positions
in the new, what he called, skills program if they
applied and to be consistent he would welcome you to
apply as well?
A. Yes.
Q. And you, in fact, did apply?
A. Yes, I did.
Q. Now, I'm going to show you what's been put into the
record as Charging Party 11 and Charging Party 12.
Charging Party 11 is post your non-renewal date, right?
A. Yes, this was subsequent.
Q. Okay. So, you applied for the position and were you
given an interview for the position?
A. No.
Q. Did anyone talk to you about your qualifications for the
position?
A. No.
Q. Was there any communication between you and George Kannar
or someone from the dean's office prior to -- about your
application prior to your receipt of the letter in March
of 2009?
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A. I may have mentioned to George Kannar that I was applying
for the job and I may have explained to him why. I
wanted to stay on the friendly -- on friendly terms with
him and so I probably did mention to him that I'm an
applicant for the job and I may have spoken to him about
why I was applying for the job.
Q. Okay.
A. I don't really recall if he gave me any response. He --
he took some pains to try and distance himself from the
non-renewals, so he didn't even want to talk about it
with me.
Q. Was there a discussion about your qualifications or
your -- whether you -- the extent to which your
application had been considered before you received the
decision in March of 2009?
A. No. There was no discussion at all.
Q. Do you know offhand if the other instructors applied that
had been non-renewed?
A. I know one of them didn't apply and as far as I know all
of the other instructors did apply for the -- to be
reappointed to the positions that they felt they were
presently occupying.
Q. Okay. Do you know if they were -- received interviews
for the positions?
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A. As far as I know every single one who applied was fully
considered and received interviews for the position.
Q. Okay.
A. Including, I think, visits to their classrooms and
evaluations of their teaching performance.
Q. Now, that decision was made in 2009, so it was for
employment in March -- in -- for 2009-2010 --
A. Yes.
Q. -- is that when the new instructors would start?
A. Yes. But the -- the hiring process took a lot longer
than they anticipated, but I think that the concern about
the budget cap disappeared somewhere along the way, so
they took longer to do it.
Q. And to your knowledge do you have the qualifications to
teach what was offered in 2009-2010 in the research and
writing program?
A. I'm certain that I have the qualifications to -- to teach
any -- any variation of a legal research and writing
course.
Q. Okay. I want to switch tracks. You said you hold a
clinical appointment in the law school -- or you did
actually until August of 2009?
A. Yes.
Q. Were there other clinical faculty in the law school?
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A. Yes, there are three clinical professors and a number of
clinical instructors. I'm not quite sure how many
instructors there are, but there were three people who
had the -- had the same status and -- and rank as I did.
Q. Do you know who they are?
A. The senior -- the -- the senior person is Professor
George Hezel and it's H-E-Z-E-L. The second person in
seniority is Professor Tom Disare, D-I-S-A-R-E, and the
third person is Professor Suzanne Tomkins, T-O-M-K-I-N-S.
Q. Do you know -- strike that.
We introduced into the record as -- Charging Party 8,
which is before you, is the bylaws and the standing
orders of the law school --
A. Yes.
Q. -- and in that document there is a reference to the
Committee on Clinical Promotion and Renewal?
A. Yes.
MS. VANCE: What exhibit?
LAW JUDGE: Charging Party No. 8.
What page are you on?
MS. SINGER-BLUMBERG: Page 8.
BY MS. SINGER-BLUMBERG:
Q. You already testified that before your -- a decision was
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made on your non-renewal that you -- your filing, your
status did not go before the committee?
A. That's right.
Q. Do you know if any of these other clinical professors'
files have gone before the committee before a decision
has been -- has been made on their --
MS. VANCE: Objection. Relevance.
MS. SINGER-BLUMBERG: -- renewal?
MS. VANCE: Objection. Relevance.
LAW JUDGE: I'm going to allow it.
Go ahead.
{Objection overruled}.
MS. SINGER-BLUMBERG: Thank you.
THE WITNESS: Yes, Professors Hezel and
Tomkins both had contracts that were -- that were
expiring on the same exact day as mine, April -- no,
August twenty- -- August 31, 2009 and they were both
brought before or -- or considered by their -- by this
committee on April 21st, I believe. The same day as the
faculty meeting that you referenced earlier.
MS. SINGER-BLUMBERG: April 21, 2000 and --
THE WITNESS: 2009.
MS. SINGER-BLUMBERG: -- 2009. Okay. May
we mark this for identification purposes?
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LAW JUDGE: For identification purposes at
this point I am marking as Charging Party No. 16 a
one-page document. It's a memo dated April 6, 2009 and
I'm going to ask for some help on pronouncing the name.
It's Tony --
MS. SINGER-BLUMBERG: Szczygiel.
LAW JUDGE: -- Szczygiel and it's spelled
S-Z-C-Z-Y-G-I-E-L. That's the from. The to is the
Committee on Clinical Promotion and Review. Re: Contract
renewals for clinical professors Suzanne Tomkins and
George Hezel.
Again, it's marked at this point only for
identification as Charging Party No. 16.
{The document referred to, ChargingParty Exhibit No. 18, was markedfor identification}.
MS. VANCE: May I have a moment to review
it, please?
LAW JUDGE: Sure.
MS. VANCE: Thank you.
FURTHER DIRECT EXAMINATION
BY MS. SINGER-BLUMBERG:
Q. Professor Malkan, I'm showing you what's been marked as
Charging Party Exhibit 16 for identification purposes.
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Have you ever seen this document before?
A. Yes.
Q. Okay. And can you tell us where you would have seen it?
A. It was sent as an e-mail attachment to the whole faculty
and I think a copy was put in our mailboxes along with
copies of documents pertaining to the contract renewals
for George and Sue.
Q. And to your knowledge did the Committee on Clinical
Promotion and Review meet and review these two files?
A. Yes. I should clarify that this C.C.P.R., clinical --
Committee on -- Committee on Clinical Promotion and
Renewal is the counterpart to what used to be called the
Committee on Promotion and Tenure, so it's basically the
same committee. They just -- when they revised the --
the faculty bylaws they decided to call it by this new
name when -- when the committee is considering clinical
professors rather than doctrinal professors.
So this committee, which was comprised of all of the
tenured clinic- -- professors and clinical professors on
the faculty, was called into session on April 21st, I
think we said, to vote on the contract renewals for
Professors Tomkins and Hezel.
Q. And then give a recommendation to the dean?
A. This -- this memo says that the dean will be asking you
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to recommend renewal, so I think the dean's rec- -- the
dean and -- and Professor Szczygiel were recommending
to -- that the faculty approve the contract renewals of
these two professors --
Q. Okay.
A. -- and so the faculty -- the recommendation then bounced
back to the dean with instructions to act upon it.
MS. SINGER-BLUMBERG: I would move to enter
it in as an exhibit.
LAW JUDGE: Ms. Vance, any objection?
MS. VANCE: Could I have a moment?
LAW JUDGE: Sure.
MS. VANCE: No objection.
MS. SINGER-BLUMBERG: Thank you.
LAW JUDGE: Without objection Charging Party
No. 16 is entered into evidence. As earlier described,
it's a one-page memo with the date of April 6, 2009.
{The document referred to, ChargingParty Exhibit No. 16, previously markedfor identification, was entered intoevidence}.
LAW JUDGE: Go ahead.
BY MS. SINGER-BLUMBERG:
Q. Were you ever told why your case didn't go before the
committee?
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A. No.
Q. Are you currently employed?
A. No.
Q. Have you attempted to obtain employment?
A. Yes.
Q. And what have you done towards that end?
A. Well, starting in late October of 2008 I applied for all
of the jobs in legal writing for which I felt that I was
qualified or would fit -- fit my personal needs, so I
applied for a number of jobs. I -- I received callback
interviews for three of them.
One was at a new law school in -- in -- in
Charleston, South Carolina called the Charleston School
of Law. Another one was the Touro Law School in East
Central Islip Long Island and the third one was at
another new law school called the Charlotte School of Law
in Charlotte, North Carolina. So, I -- those were all
three callback interviews and I -- which I was a finalist
for all of those jobs.
Q. Do you know why you weren't given any of them?
MS. VANCE: Objection. Relevance.
LAW JUDGE: I'm going to sustain that.
{Objection sustained}.
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BY MS. SINGER-BLUMBERG:
Q. Have you ever heard the dean share his view of unions?
A. Yes.
Q. When?
A. The very first faculty meeting after he was appointed to
the interim dean. It may have been late January or early
February of 2008.
Q. And what was the discussion?
A. The discussion was in the context of Professor Diane
Avery, who is our labor law specialist on the faculty,
and she was -- she was speak- -- she spoke to object to
the commenter's treatment of the secretaries. After he
became dean he changed their -- their -- their work
environment by consolidating them into -- into two -- two
to an office and he also changed their work schedules and
so they apparently had gone -- complained to their union,
CSEA, about these changes in -- in their terms and
conditions of employment.
MS. VANCE: Object- -- may I just -- was
Professor Malkan at this meeting? I'd ask what -- lack
of foundation -- I'd ask if there is a foundation that's
been laid that he was there?
LAW JUDGE: I think we need to get a little
background as to what lead to the comments that the dean
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allegedly made regarding all this --
MS. VANCE: Right.
LAW JUDGE: -- stuff with the secretaries.
MS. VANCE: Of what -- he was about to say
what the secretaries said or what the dean said, but I
just didn't know foundationally if Professor Malkan was
at this meeting.
MS. SINGER-BLUMBERG: We can clarify. Were
you present at that faculty meeting?
THE WITNESS: I was present at the faculty
meeting and reporting what Professor Avery said.
MS. SINGER-BLUMBERG: At the --
THE WITNESS: Right.
MS. SINGER-BLUMBERG: -- faculty meeting?
THE WITNESS: Right.
MS. VANCE: At which Dean Mutua was also
present?
THE WITNESS: Yes.
LAW JUDGE: Okay. Go ahead.
THE WITNESS: So, after -- after
Professor Avery said her piece, Dean Mutua became very
angry and he said that -- he took it as a personal
affront that the secretaries had gone to the union to
complain about him and he said that he is a world
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renowned human rights advocate, that he spent his -- his
life pursuing causes of human rights and he took personal
offense to the fact that they would go over his head and
talk to the union about something that he had done.
BY MS. SINGER-BLUMBERG:
Q. And that you said was in -- when?
A. That was -- I'm not sure of the exact date of the faculty
meeting. It was either late January or sometime in
February of 2008. I'm -- I'm pretty sure it was the
first faculty meeting he presided over after he became
interim dean.
Q. Okay. And you referred to him as interim. At what point
did he go from interim to dean?
A. The -- the -- the law school and the university did a
national job search to find a replacement for Nils Olsen
and the job search failed, so in the late -- end --
toward the end of the semester -- I think it was May
2008 -- the job search was abandoned and the -- the
provost of the university came over to the law school and
explained to us that the -- that the university's
consultant on the job search told him that it was
impossible to go back into the job market and renew the
search the following year and so there would have to be
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sort of a resting period before they go out to look for a
permanent dean and so he was -- he proposed that
Dean Mutua be installed as the dean for another
three-year term and at the end of Dean Mutua's second
year as the dean that the law -- that the law school
would announce once again that it was gonna announce --
do another nationwide job search to find a real permanent
dean.
Q. Okay.
A. So, that's what happened in May 2008. There was some
discussion on the faculty as to whether they were being
presented with a fait accompli or whether -- and
whether -- whether this approach complied with the A.B.A.
requirements. After a lot of discussion and debate, the
faculty decided to acquiesce and so Dean Mutua was
appointed to the three-year term.
Q. Do you recall how many other faculty members were present
at that first faculty meeting where this discussion was
had about the union activity of the secretaries?
A. Probably about -- probably about 25, I would think.
Q. Okay. At what point did you seek assistance from your
union representation -- from your union?
A. It was shortly after I was removed as director, so it
would be in probably late March of '08 -- 2008.
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Q. And after that initial contact with the union, did you
make attempts to contact the dean directly anymore?
A. No.
Q. How about the dean's -- the -- the vice dean?
A. No.
Q. And why was that?
A. I thought it would -- it would be futile to have -- to --
to ask for anything else. I felt that the best way to
proceed would be through intermediaries. I had also been
advised by a couple of the professors and staff people in
the law school that it was important for me to involve
the UUP at the earliest possible time, so that there
would be a record of what was happening with my job
situation.
Q. Do you recall if at any point you were advised whether
your clinical professor appointment was in jeopardy after
you were removed as director?
A. I never received any such advice, no.
Q. I have one last exhibit to show you -- actually two;
what's been put into the record as Charging Party 13 and
Charging Party 14. Charging Party 13 is the Fall 2008
schedule and Charging Party 14 is the Fall 2009 schedule.
And, again, you were told that -- both at the time
you were removed as director and then again in August of
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'08 -- so before the fall '08 schedule was underway --
that the program had been modified -- actually terminated
and a new program for research and writing was going to
be undertaken in terms of the skills program.
Can you just explain to us based on the -- first of
all, explain to us the exhibit -- the -- the three-page
exhibit with different sections?
A. Okay.
LAW JUDGE: We're looking at Charging
Party 13 right now?
MS. SINGER-BLUMBERG: Yes, let's start with
Charging Party 13.
THE WITNESS: That's the 2008 --
LAW JUDGE: Yes.
THE WITNESS: -- exhibit?
MS. SINGER-BLUMBERG: Right.
THE WITNESS: Okay. The way the law
school -- the first year is -- is scheduled the first
year class is divided into three sections, which are
designated Section U, B and L and within each of these
sections the students are assigned to all their
substantive first year courses and -- and research and
writing sections as well. So, this is the schedule for
the Fall 2008 semester.
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BY MS. SINGER-BLUMBERG:
Q. And how does it compare to the Fall 2009 schedule?
A. As far as Section L goes, which is the relevant section,
in Fall 2008 I was -- I taught section -- at the -- I --
I -- I taught Section L-4 of research and writing. In
fall -- in Fall 2009 there was still a Section L-4 of
research and writing and the instructor's name was
Patrick Long.
So, this says to me that the same section of the same
course that I taught in the fall of 2008 was taught by a
new instructor in the fall of 2009. That was my
instructional position in the legal research and writing
program and it appears that it still exists, except
filled by another person.
MS. SINGER-BLUMBERG: Okay. I just need a
minute.
LAW JUDGE: Sure. Let's go off the record
for a minute.
{There was a short break in the proceeding at this point
in time}.
{Back on the record}.
LAW JUDGE: We're back on the record.
MS. SINGER-BLUMBERG: Nothing further,
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{ Malkan - Cross - Vance } 96
subject to redirect.
LAW JUDGE: Ms. Vance, I presume you'd like
a few minutes to collect your thoughts. There was --
MS. VANCE: I would if --
LAW JUDGE: -- a lot --
MS. VANCE: -- you don't mind.
LAW JUDGE: -- a lot of testimony there.
Let's do this. Let's take about a ten to fifteen minute
break. I have twenty of four. Let's try and get back on
the record by about five to four, if we can. Four
o'clock at the latest, okay. So, we're off the record.
{There was a short break in the proceeding at this point
in time}.
{Back on the record}.
LAW JUDGE: Let's go back on the record.
When we left off Ms. Vance was prepping for
Cross-Examination. Ms. Vance, the floor is yours.
MS. VANCE: Thank you.
CROSS EXAMINATION
BY MS. VANCE:
Q. Professor Malkan, just to clarify one point, you
testified, I believe, that Professors Hezel and Tomkins
went before the Committee on Clinical Promotions and
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{ Malkan - Cross - Vance } 97
Renewal; is that correct?
A. Yes.
Q. Okay. Were they -- did -- were they involved in the
research and writing program at all?
A. No.
Q. Now, did they teach in clinics?
A. Yes.
Q. Okay. Did you teach in any clinics?
A. No.
Q. Now, when you were -- when you received word from the
dean on March 13, 2008 that you had been removed as the
director of the research and writing program, what -- I
believe it's your testimony that you then asked for a
meeting with the dean or asked for some clarification
from the dean as to why he had taken this action against
you --
A. I think --
Q. -- is that correct?
A. -- I think that asking for a meeting is what I did before
I received the e-mail removing me as director of the
program. In other words, I thought we should have a
face-to-face meeting and not a telephone conversation
about it.
Q. Okay. So -- but you're saying that before you were aware
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{ Malkan - Cross - Vance } 98
or before you had received the notice that you had been
removed as director, you asked the dean to sit -- to
discuss with you why he -- you wanted to sit down with
the dean to discuss whatever it was he wanted to discuss
with you?
A. Yes, I -- I think -- I think that was the gist of the
e-mail exchange I had with his secretary initially was --
was that I don't want to talk to him on the telephone. I
think we should sit down face to face to talk about
whatever it was.
Q. Okay. Now, when -- then once you received the notice
through the e-mail of March 13, 2008 that the dean had
relieved you as director, what -- did you ask for -- did
you contact the dean's office or contact anyone like
employee relations or anyone else to ask for a meeting
with the dean? What did you do?
A. Well, at that point when I got back to school after
spring break I spoke to a couple -- I spoke to various
people on the faculty, people I presumed to be friends or
colleagues, and a couple of them advised me that I -- the
next -- my next step should be to talk to the UUP and
bring them into the circle, so my next step was to
contact Paul Zarem- -- Paul Zaremba, Z-A-R- --
Z-A-R-E-M-B-A --
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{ Malkan - Cross - Vance } 99
MS. SINGER-BLUMBERG: K-A.
THE WITNESS: -- K-A, Zaremka, who is the
faculty grievance representative for UUP, and he called
Tara Singer-Blumberg in as the labor relations specialist
and had a meeting with them to ask them how I should
proceed.
BY MS. VANCE:
Q. Okay. And then did you ever personally ask -- contact
the dean's office to ask for a meeting?
A. After then I believe that all of my -- all those actions
were taken on my behalf by the union.
Q. Okay. So -- let's see. All right. Now, I'm going to
direct your attention to Administrative Law Judge Exhibit
No. 1, which is the Charge. I can bring this up to you
to show you and I'm looking at paragraph -- well, twelve.
LAW JUDGE: I've got a copy.
He can take mine.
THE WITNESS: Okay.
MS. VANCE: Just read twelve and thirteen.
LAW JUDGE: Is that the details of the
Charge?
MS. VANCE: Yes.
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{ Malkan - Cross - Vance } 100
FURTHER CROSS EXAMINATION
BY MS. VANCE:
Q. So, when you look at Paragraph 12 is that -- it seems to
me that what you're telling me now is that that -- that
paragraph is not accurate; is that -- is that correct or?
A. Looking at this now I think I would probably reverse
twelve and thirteen. I think that subsequent to spring
break that numerous attempt- -- occasions -- numer- --
attempts were made to get the dean to meet with me, but
they were all done through an intermediary. I -- I
didn't do it directly.
Q. Okay. So, once you -- and Paragraph 12 says that you
understood you could be removed as director and then once
you remove -- it's -- it's implying that once you were --
you had already been removed as director and you
attempted to meet with the dean, so that's -- that's not
true, correct?
A. Say it again.
Q. Paragraph 12 indicates that you had already been removed
as director and then you had attempted on several
occasions to meet with the dean in order to discuss the
reasons for your removal and the dean refused to meet
with you, but what I'm hearing from you now is that
that's not true?
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{ Malkan - Cross - Vance } 101
A. It's true except what's -- what I -- what isn't said here
was maybe -- what isn't said here is that those attempts
were dir- -- were made through an intermediary, not by me
directly, because at that point I felt that I needed the
assistance of -- of a go-between. I didn't think I was
gonna make any progress with Dean Mutua, so I --
Q. So, what --
A. -- asked for help.
Q. -- so, what you're saying is that you did not attempt --
you personally did not attempt to meet with the dean?
A. I -- I don't know what you mean by personally. I mean,
it was me --
Q. I know what --
A. -- it was just -- you know, it was communicated to him by
Tara Singer-Blumberg.
Q. But -- okay. I understand you're saying that the union
got involved at some point and made attempts on your
behalf --
A. Yes.
Q. -- to -- to arrange a meeting, but just so we're clear,
is it your testimony that you personally never contacted
the dean's office or any other management person to -- to
set up a meeting?
A. I never -- I never -- that's true. I never -- I never
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{ Malkan - Cross - Vance } 102
had any communication with management, either of the law
school or at the -- or from the university from that
point forward. It was always through the intermediary of
the union.
Q. All right. So, that's why you say that you would reverse
Paragraphs 13 and 12. You would say that first -- you
know, what you did was once you were removed as director
you contact -- you -- you contacted the union and then
any attempts that were made to set up a meeting were done
by them on your behalf?
A. Exactly.
Q. And that you never -- you personally --
A. Exactly.
Q. -- never did that?
A. At that point as soon as I -- I got back from spring
break and I saw the -- you know, what the situation was,
I -- I followed the advice of my colleagues and
contacted, like I said, the union representatives and set
up a meeting --
Q. Okay.
A. -- with them.
MS. VANCE: Thanks. Nothing further.
LAW JUDGE: Nothing further?
MS. VANCE: Nothing further.
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{ Malkan -- Re-Direct -- Singer-Blumberg } 103
LAW JUDGE: Okay.
MS. SINGER-BLUMBERG: Just one point of
clarification.
LAW JUDGE: Thank you.
RE-DIRECT EXAMINATION
BY MS. SINGER-BLUMBERG:
Q. Hezel and Tomkins taught in the clinic, but did they hold
the same title as you did, clinical professor?
A. Yes, they were the same academic rank as -- as me, but
their teaching assignments were through the clinics and
through courses related to the clinics. My teaching
assignment was in the legal writing program but, if I
might add, this is not unusual in the legal writing
field.
Legal writing professors throughout the country
receive long-term job security under the same A.B.A.
provision that the clinical professors do, 405-C, and in
many law schools, including Cornell and the University of
Michigan, all of the legal writing professors have the
academic title of clinical professor.
MS. SINGER-BLUMBERG: Okay. Thank you.
Nothing further.
LAW JUDGE: Ms. Vance, anything further?
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Dean R. Nelson - Court Reporter(716) 741-9255
104
MS. VANCE: No thank you. Nothing further.
LAW JUDGE: With that you are excused.
You may step down. Thank you.
{Witness excused}.
LAW JUDGE: Ms. Singer-Blumberg, why don't
you collect your --
MS. SINGER-BLUMBERG: My papers?
LAW JUDGE: -- yes. Let's go off the record
for a moment.
{There was a short break in the proceeding at this point
in time}.
{Back on the record}.
LAW JUDGE: We're back on the record
briefly. It's about 4:30 now. We've concluded with one
witness, both Direct and Cross today. It's quite
apparent we're going to need day two. I just checked my
calendar and I'm going to share some dates with the
representatives and ask them to get back to me as quickly
as possible, so that we can pick a date for day two and
with that we're off the record for today and adjourned.
{Whereupon, the hearing in the above-entitled matter was
adjourned at 4:30 p.m.}.
KAREN L. COSTELLO(518) 756-3198
105
C E R T I F I C A T I O N
STATE OF NEW YORK )
: SS:
COUNTY OF ALBANY )
I, _______________________, a Notary Public for
and with the State of New York does hereby
certify:
That the witness(es) whose examination is
(are) set forth herein was (were) duly sworn and
such examination is a true record of the testimony
given by the witness(es).
I further certify that I am not related to any
of the parties to this action by blood or by
marriage and that I am in no way interested in
the outcome of this matter.
IN WITNESS WHEREOF, I have hereunto set my
hand this ______ day of, ________________, 2010.
_______________________
January 15, 2010