perb transcript - april 1 2010

8/2/2019 PERB Transcript - April 1 2010

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VOLUME 3

STATE OF NEW YORK

PUBLIC EMPLOYMENT RELATIONS BOARD

* * * * * * * * * * * * * * * * * * * *

In t he M at te r o f:

UNITED UNIVERSITY PROFESSIONS, NEWYORK STATE UNITED TEACHERS, AFT,LOCAL 2190, AFL-CIO,

Charging Party,

-and-

STATE OF NEW YORK (StateUniversity of New York atBuffalo),

Respondent.

****************

Case No.U-28826

* * * * * * * * * * * * * * * * * * * *

Public Employment Relations BoardMain Hearing RoomFifth Floor80 Wolf RoadAlbany, New York 12205April 1, 2010

The above-entitled matter came on for hearingat 9:45 a.m., pursuant to Notice.

Before: KENNETH S. CARLSON, ESQ.Administrative Law Judge

D EA N R . N EL SO N - C OU RT R EP OR TE R - ( 71 6) 7 41 -9 25 5


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A P P E A R A N C E S :

NEW YORK STATE UNITED TEACHERS, 270 EssjayRo ad , W il li am sv ill e, Ne w Y or k 14 22 1, BY : T AR ASINGER-BLUMBERG, ESQ., of Counsel, appearing on

behalf of the Charging Party.

MICHAEL N. VOLFORTE, Acting General Counsel,Governor's Office of Employee Relations, 2 EmpireState Plaza, Suite 1201, Albany, New York12 22 3- 12 50 , B Y: L YN N HO ME S VA NC E, E SQ ., ofCounsel, appearing on behalf of the Respondent.


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242

I N D E X T O W I T N E S S E S

WI TN ES S DI RE CT CR OS S RE DI RE CT RE CR OS S

RESPONDENT:

MAKAU MUTUA -- 243 -- --

JEFFREY REED 346 359 -- --

JAMES NEWTON 365 371 -- --

* * * * * * * * * *

I N D E X T O E X H I B I T S

EXHIBIT DESCRIPTION FOR ID IN EVID

CHARGING PARTY:

17 Document, 2 pages, 246 --Internet Legal ResearchGroup

18 Document, 1 page, Memo 319 322to M ak au f ro m J ef fre y,9/9/05

19 Document, 1 page; 323 324E-mails to and fromMutua and Malkan, 3/3/07

RESPONDENT:

9 Document, 7 pages; 362 362Letters, 7/14/08


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243

P R O C E E D I N G S

LA W J UDGE CARLSON : We are on the

record.

We are about to begin Day 3 of the

hearing in U-28826.

On the stand already is Dean Mutua.

When we left off yesterday afternoon, the

Direct Examination was completed, and we are

about to begin his Cross-Examination.

Anything the parties need to -- there's

nothing we need to deal with housecleaning?

MS. SINGER-BLUMBERG: No.

LAW J UDGE: Jump r ight i n. Your

witness.

WHEREUPON,

MAKAU MUTUA,

h av in g b ee n c al le d b y a nd on b eh al f o f t he

Respondent, and, having been duly sworn, was

examined and testified further as follows:

CROSS-EXAMINATION

BY MS. SINGER-BLUMBERG:

Q Dean, y ou're familiar with t he bar pass rates for

the Law School?

A Yes, I am.


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[Mutua, Cross] 244

Q And so you'r e a war e t hat the pass rates have

actually gone up since Jeff started as Director of

the Research Writing Program?

A They h ave gone up but m inimally.

Q Minimally. So when y ou s ay "minimally, " they were

at minus .88 percent before he started, and the

fi rs t y ea r t ha t - - t he f ir st y ea r t ha t t he

st ud en ts t oo k t he b ar a fte r he w as h ir ed, t he y h ad

gone up by eight percent?

MS. HOMES VANCE: Objection.

Foundation.

L AW J UD GE : T he D ea n d i d i nd ic at e h e

w as a wa re o f t he bar p as si ng r at es . P er ha ps

jumping into the --

MS . H OMES VA NCE: I don 't know i f t he

foundational being the percentage is

c or re ct , a nd I d on't k no w i f t he D ea n k no ws

whether that's correct or not, those

statistics.

LAW JUDGE: There's an assumption then

t ha t t ho se ar e c or re ct. W hy d on 't yo u s tar t

by a sk in g t he D ea n b y h ow m uc h?


Q Wh en y ou s ay " mi ni ma ll y, " w ha t p erc en ta ge is th at ?


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[Mutua, Cross] 245

A I d on't know the numbers in front of me. I c annot

r ec al l it ri gh t a wa y, b ut I th in k o ur b ar p as s

ra te h as n ot j um pe d u p b ey on d t he r an ge of b et we en

three and four percent, to my recollection.

Q So if I were to tell you that from the time

Professor Malkan started as Director through 2007,

t he b ar p as s r at e w en t u p b y a lm os t 15 p er ce nt ?

A Oh, I would have to see the numbers to be able to

respond to that.

Q Would y ou say that 15 percent is a significant

pass rate?


Irrelevant. We don't have any foundation

for whether or not the numbers actually

jumped like that. I think we need to have

some foundation that this is really true.

Otherwise, it's just speculative and no

foundation.

L AW J UD GE : I' ll s us ta in th at .

MS. SINGER-BLUMBERG: Your Honor, I

want to -- I only have one copy of this.

LA W J UDGE: Off the record for a

second.

(Discussion was held off the record).


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[Mutua, Cross] 246

LA W J UDGE: For the record , I am

marking as Charging Party Exhibit No. 17 a

t wo -p ag e do cu me nt . It a pp ea rs t o b e a

screen grab of sorts from Internet Legal

Research Group, some admissions and other

statistics, particulars concerning the

University of Buffalo Law School. Two page

d ocu me nt I am m ar kin g f or I D o nl y a t t hi s

point as Charging Party Exhibit No. 17.

(Charging Party Exhibit No. 17 wasmarked for identification).

L AW J UD GE : Th an k y ou.

For the record, the witness has been

handed a copy.

MS . H OMES VA NCE: A re w e b ack on the

record? I wanted to interpose an objection.

L AW J UD GE : S he h as n't off er ed i t y et.

Go ahead.

MS . H OMES VA NCE: Were we on the

r ec or d? We h ad t ak en a m om en t t o d is cu ss

t hi s. I th in k w e a lr ea dy h av e q ue st io ns

about this document; correct? Or not?

LA W J UDGE: No .

MS. SINGER-BLUMBERG: No.


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[Mutua, Cross] 247

M S. H OL ES V AN CE : A ll r ig ht.

LA W J UDGE: She started to ask some

background questions.

MS. H OMES VANCE: All right. So I am

j um pi ng a h ea d. A ll r ig ht. I a p ol og iz e.

LAW JUDGE: Okay. Go ahead.


Q De an , d oe s t he L aw S ch oo l s ha re i nf or ma ti on o n

st at is ti cs o f p as s r ate s f or t he b ar e xa m? D o y ou

know, publicly or to --

A We share that information with US News and World

Report.

Q A nd t ha t i nc lud es t he p er ce nt ag e e ac h y ea r o f

students who pass the bar?

A Yes.

Q And the document that you have in front of you

lists in the middle section the school's bar

passing rate for a number of years?

M S. H OM ES V AN CE : O bj ec ti on a s t o a ny

questions regarding this document. Lack of

foundation. I have no way to know and I

s us pe ct th e D ea n has no w ay t o k no w w he th er

any of the information contained on this

document is reliable, from where it came.


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[Mutua, Cross] 248

P lu s t he se ar e n ot j us t p ur e s ta ti st ics . We

don't know who this Internet Legal Research

Group is. These statistics are, they're not

reporting pure statistics from the

University of Buffalo. They're taking

statistics and they are analyzing them and

coming to a conclusion, and they're also

comparing bar passage for ABA and non-ABA

accredited schools, or apparently that's

what they'r e doin g. If you look at th e,

across the top where it says "Admission

Statistics," they have, only certain years

are repo rted. So it 's not , even if this was

d ee me d t o b e r el ia bl e b y s om e st re tc h of the

imagination, there are years that are

missing here so it wouldn't be a complete

snapshot of what the bar passage rate would

be f or t he U ni ve rsi ty o f B uf fa lo i n a ny

e ve nt . T her e w ou ld be n o r el ia bil it y to

these statistics.

LAW JUDGE: Without better foundation,

frankly, I'm inclined to agree with you.

O n t he o th er h an d, I 'l l g iv e you an

opportunity to ask this witness if you can


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[Mutua, Cross] 249

establish foundation or some reliability or

indicator that these numbers are, in fact,

accurate. We'll see where that goes.

MS. SINGER-BLUMBERG: Thank you, Judge.


Q Dean, if you turn to page 2 of the document, it

says that the average for bar exam statistics, in

t he l it tl e f in e p ri nt at t he b ot to m of t he b ox ,

were calculated for the years listed as released

by t he law schools . So y ou said you do release

yo ur b ar p as sa ge r at es t o U S N ew s a nd W or ld

R ep or t, I be li ev e y ou s ai d. A nd on t he f irs t p ag e

of the document, I would draw your attention just

to the sentence that says, "School bar's passage

rate," and this is UB specifically that we're

looking at.

A Uh-huh.

Q And it lists a passage rate for eve ry year except

2003; correct?

A Correct.

M S. H OM ES V AN CE : E xc us e m e.

Objection. That mischaracterizes the

evidence.

MS. SINGER-BLUMBERG: It lists 2001,


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[Mutua, Cross] 250

2002. The re's a blank for 2003, a nd then it

g oe s t o ' 04 , ' 05 , '0 6, ' 07 .

MS . H OMES VA NCE: A nd w e don' t have

anything beyond that.

LA W JUDGE: Okay, f air e nough . It

doesn't list every year, but from 2001 to

2007 with the exception of 2003.

MS. SINGER-BLUMBERG: Correct.


Q Do y ou have any reason t o b elieve that these

nu mb er s a re n ot a cc ura te in te rm s o f t he b ar

passage rates for UB?


I rr el ev an t as to w hat h e h as r eas on t o

believe whether they're accurate or not

accurate. The question is whether they are

accurate or not accurate, and unless the

witness can say with certainty that they're

accurate, it's irrelevant. His speculation

is not relevant.

L AW J UD GE : I' m g oi ng t o o ve rr ul e t h at

and let you ask the question.

A I have no way o f k nowing whether these numbers ar e

accurate.


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[Mutua, Cross] 251

Q Ok ay , y e st er da y y o u t es ti fi ed t ha t y ou k ne w a bo ut

t he b ar p as sa ge r at es . I n f ac t, y ou s ai d t ha t y o u

believed that it was Malkan's fault that the bar

passage rate s a t U B w ere so low. That was one o f

the statements you made yesterday in your

t es ti mo ny on d ir ec t. So y ou m us t h av e s om e

knowledge of what the bar passages rates are for

UB.

M S. H OM ES V AN CE : O bj ec ti on . R ea ll y I

could be mistaken, but I believe that

mischaracterizes the Dean's testimony

yesterday.

LAW J UDGE: I d on't t hink s o. I'm

going to overrule that objection.

Go ahead.

A Yes. I - - I did c onnect the i ncompetence with

which Jeff Malkan ran the program with our anemic

bar passage rates, and while I can speak generally

about the numbers, I cannot say for certain

whether these are the numbers that the Law School

has without -- without -- without seeing my own

numbers.

Q Ro ug hl y, w ha t a re t he n um be rs g en er al ly ?

MS. HOMES VANCE: Again, objection as


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[Mutua, Cross] 252

to it's irrelevant as to what the numbers

are generally. If this witness doesn't have

a basis of knowledge.

L AW J UD GE : O ve rr ul ed. H e te st if ie d

yesterday that, he testified the bar passage

r at es we re n't as g ood a s h e w ou ld l ik e to

see them. That's my characterization of his

testimony, and he did squarely place the

blame on Professor Malkan. That presumes he

h as s om e ba si c k no wl ed ge o f i t, an d I t hi nk

it 's f ai r f or Ms . B lu mb er g to pr ob e a s to

h ow b ro ad t ha t k no wl ed ge m ay b e an d t o a sk

questions abo ut i t. I' m go ing t o - -

MS. HOMES VANCE: I wouldn't disagree,

but I just think in terms --

LAW JUDGE: I'm overruling.

M S. H OM ES V AN CE : - - o f s pe cif ic

numbers that the Dean doesn't really carry.

L AW J UD GE : I h ea rd hi s t e st im on y a n d

--

M S. H OM ES V AN CE : H e s ai d ge ne ral ly .

LA W JUDGE: That' s fine . He c an s peak

g en er al ly a nd t ha t w a s h er q ue st io n. I

believe the last question was just asking


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[Mutua, Cross] 253

h im t o s pe ak g en er al ly. O f c ou rs e sh e

understands of course he can't verify these

r ig ht n ow a s a cc ur at e, b ut I t hi nk it 's a

fair question to ask generally, as you did.

A I c an no t v er if y t he se n um be rs, y ou k no w, wi th

respect t o the bar pass rates fo r -- fo r m y l aw

school. What I ca n t ell you i s t hat even if you

put numbers like this for Buffalo, you still would

have to look at comparatively what the numbers are

f or o th er l aw s ch oo ls w it hi n t he s tat e to do a

deeper analysis to see if, in fact, bar passage

ra te s d id go u p a cr os s t he s ta te a nd b y w ha t

p erc en ta ge o ur b ar p as s r at e w en t u p o r w en t do wn

to b e a bl e t o d et er mi ne i f, in fa ct , y ou kn ow , w e

a re d oi ng we ll in t ha t p ar ti cu la r a re a. A nd ba se d

upon my own analysis of our numbers, again,

speaking generally, we have lagged behind other

l aw s ch oo ls in t he s tat e of N ew Y or k.

Q The a verage for t he s tate?

A Yes. We have lagged behind.

Q Throughout Malkan's tenure as Director, you lagged

behind the state's average pass rate?

A Repeat the questio n.

Q Throughout Malkan's tenure as Director, you're


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[Mutua, Cross] 254

saying that UB lagged behind the state average

pass rate throughout his tenure?

A I w ould say that generally f or the last te n y ears

a nd e ve n b ey on d, w e h av e l ag ge d b eh in d in o ur b ar

pass rate in the state generally.

Q What does that mean? Some years you were ahead?

Some years you were behind?

A Minimally. Let me -- negligible percentages. I

me an , t he re w as n ev er -- we w ere n eve r a bl e t o

pe rf or m t o o ur s at is fa ct io n in t he - - i n t he b ar

pass category compared with the other law schools

in the state.

Q What i s t he average s tate b ar p ass r ate? Do you

know?

A I believe it is in the mid-80s.

Q And w hat is UB' s average pass rate?

A It's below that.

Q A nd j us t f or p ur po ses of c la rif ic at io n, M al ka n

started in 2000; right?

A Th at 's m y un de rs ta nd in g.

Q So t he first year that student s w ho have been

influenced by his running of the program would

have taken the bar exam, the first relevant year

for percentages would be what?


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[Mutua, Cross] 255

A The first year that students that he -- that he

taught would have taken the bar would have been

2003.

Q He w as one o f how many teacher s teachin g Research

and Writing?

A One of seven.

Q So what about -- the other six didn't have an

influence on the impacts of the passage rate for

Research and Writing instructors?

A I cannot say.

Q But y ou k now t hat h e did?

A What I can say is that he was the Director of the

program. Obviously, the buck stopped at his desk.

It was his responsibility to construct a

curriculum and to organize the program in such a

way to deliver a curriculum that would help our

st ud en ts p as s t he b ar . H e w as t he r es po ns ib le

party.

Q That's a lo t o f weight o n a first -year program fo r

something that happens two years or three years

later?


L AW J UD GE : T hat is s us ta ine d.

Q How much weight does the second and the third year


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[Mutua, Cross] 256

education of the Law School influence the passage

rate o f the bar in your view?

MS . HOMES V ANCE: I' m sorr y. Could

that question be repeated? I didn't hear

it.

Q How much weight does the second and third year,

h ow m uc h i npu t d oe s t he s ec on d a nd t hi rd ye ar h av e

on t he p as sa ge r at e o f t he b ar?

A It's -- it's difficult for me to say with

certainty. The only thing I can say to yo u i s

that th e first year o f l aw schoo l is a

foundational year, you know, for law students, and

especially with respect to the Research and

Writing Program where students are being taught

how to do legal analysis , t o d o researc h. It is

the one year in which basically those skills are

d el iv er ed to s tu de nt s. S o I w ou ld h av e to s ay

th at w ha t ha pp en s in t he f ir st ye ar is by f ar a nd

aw ay o ne of t he m os t i mp or ta nt pa rt s o f, y ou kn ow ,

t he t en ur e o f a l aw s tu de nt in t he L aw S ch oo l.

Q So I was i n law s chool a long t ime a go. When I

went to law school, the first year curriculum

included all mandatory courses basically. You had

to take civil procedure and property law and


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[Mutua, Cross] 257

things like that, and all of those were critical

components of the bar exam, those first year

mandatory courses.


MS. SINGER-BLUMBERG: I'm getting to a

question.

Q Is that s till t he case n ow?

LAW JUDGE: Overruled.

Go ahead.

Q What a re t he f irst y ear c ourses? Are t hey

mandatory for the students?

A The -- you know , a s y ou probably know, although

you say you were i n l aw s chool a long time ago,

there are substantive courses taught in the first

year which teach substantive law, you know,

property and so on, but there are courses that

teach legal analysis and legal research. I would

like to make a distinction between the courses

that teach substantive law and those that teach

legal analysis and research. The purpose of legal

re se ar ch a nd a na ly si s is to be ab le to a ll ow a

student to understand the logic of the law, to

understand the structure of legal argument and to

be able t o thi nk like lawyers. I t i s m y view that


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[Mutua, Cross] 258

without a good foundation in legal research and

analysis, it is very difficult to produce good

lawyers.

Q But the bar exam still has a day that's just

multiple choice questions; right?

A I m ean, the bar exam is a complex --

Q That's n ot the q uestion. The question is: Is one

of t he d ay s of t he b ar e xa m st il l a ll m ul ti pl e

choice?

A I d on' t understand th e point.

Q The point is for you to answer my question .

A Yes, it does.

LAW J UDGE: There you go. Thank you.

MS. SINGER-BLUMBERG: I'm not going to

move to introduce this, your Honor.

L AW J U DG E: F air e no ug h.


Q Revisiting some of your testimony yesterday, Dean,

y ou i nd ic at ed t ha t t he s ea rc h f or a n ew d ea n to

replace Nils Olsen failed because the University

wasn't satisfied with the candidate pool that it

got. Didn't they make offers to two candidates

who turned down the opportunity to become the

dean?


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[Mutua, Cross] 259

A That w as n ot s omething t hat I w as p rivy t o. I'm

not a Provost or the President.

Q Y ou w er e o n t he s ea rc h c om mi tt ee , t ho ug h?

A I w as on th e s ea rch committee, but the search

committee does not make offers to candidates.

Q They'r e n ot made aware that offers are made t o

other candidates?

A Th ey a re m ad e a wa re t ha t t he re a re n eg ot ia ti on s

between, you know, candidates and the University.

Q So were you made aware that there were

negotiations on two separate occasions with other

people who turned down the offer during the

search?

A I w as n ot aware o f that.

Q And you also indicated that you were given an

indefinite position as Dean?

A Yes.

Q The Provost told the faculty that because of the

failed search that you would be on a three-year

appointment and after the second year they would

run a n ew search. Ar e y ou aware of that?

A No, I'm not.

Q And so you'r e n ot aware that they 're going to run

a n ew search f or a Dean?


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[Mutua, Cross] 260

A No. I'm aware of the contract that I was given by

the University which is a two-year indefinite

contract as Dean.

Q Deans serve at the will a nyway, don' t t hey ?

A Yes, they do.

Q You indicated that on e o f y our duties a s D ean is

to h el p h i re f ac ul ty a nd s ta ff . Y ou u se d t ha t

word, to help hire.

A Yes.

Q I w ant to clarify that a little b it. So e xplain

to me who does the hiring, specifically.

A So t yp ic al ly w ha t h a ppe ns i n t he h ir in g p ro ce ss o f

staff or faculty -- which one?

Q L et' s t al k a bo ut t enu re t ra ck f ac ul ty f ir st.

A Wh at h ap pe ns i s t h at t he D ea n d e te rm in es wh et he r

th er e' s a ne ed to h ir e n ew f ac ul ty i n t he L aw

School and determines the areas in which faculty

me mb er s w ou ld b e h ir ed . So , f or e xa mp le, I c ou ld

look at the curriculum and decide that there's a

gap in Tax Law or there's a gap in Evidence. I

would then, you know, approach the Provost or the

President and get permission, meaning resources,

to hire for such a position . I will then come t o

t he f ac ul ty a nd l et t he f ac ul ty k no w t ha t we c an


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[Mutua, Cross] 261

be gi n a s ea rc h f or a f ac ul ty m em be r in t ha t

particular area.

The faculty would then -- the Appointments

Committee, which is elected by the faculty, would

th en b eg in t he p ro ces s o f l oo ki ng a t t he A LS --

AALS directory which is the Association of

American Law Schools, AALS, to comb that list for

candidates who are suitable in that particular

ar ea . T he y w il l t he n b rin g -- th en c ul l t he li st

and look for the most suitable candidates.

They will invite those candidates to the Law

S ch oo l f o r a n i nt er vi ew. T he y wi ll be

interviewed. The faculty will then discuss that

candidate based upon their scholarship, and their,

you know, job talk, and the faculty would then

vote as to whether that candidate was appointable

or n ot. T he n t he D ea n w ou ld b eg in n eg ot ia ti on s

with the candidate to see if a candidate would

accept the offer from the faculty.

Q And then the offer comes from the Dean?

A The offer comes from the Dean and the terms of the

appointment come from the Dean.

Q So w he re is t he P re si de nt 's i nv ol ve men t i n t ha t

process?


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[Mutua, Cross] 262

A Once a candidate is given the offer by the Dean

a nd s he o r h e a cc ep ts t he o ff er , t he n t he D ea n

makes a recommendation to the Provost to formally

appoint that person as a faculty member.

Q But the Dean actually signs an agreement i n

negotiations that results in a letter between the

Dean and the applicant?

A Yes. Yes. But that particular letter is, you

know, is obviously a letter between the Dean and

the candidate, but the formal appointment is not

ma de b y t he D ea n.

Q It' s m ade by t he President pursuant to the

policies?

A It' s m ade by t he President, you know , a nd the

Provost together.

Q It's perfunctory, though; right?

A No, it is not.

Q So have you entered into an agreement o r a re you

aware of a dean entering into an agreement with an

applicant in writing, a letter detailing their

terms and conditions and then the President

refusing to issue an appointment letter?


Relevance. We're getting into the parallel


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[Mutua, Cross] 263

lawsuit that's pending in a Court of Claims

for the contract action, and really I think

it's veering off, and, frankly, I don't know

that this witness has the basis of knowledge

to testify to that.

L AW J UD GE : Wh er e a r e y ou go in g w it h

this?

MS. SINGER-BLUMBERG: The appointment

letters between the Dean and Malkan that

specifically speaks to terms of termination.

So I' m just tryi ng t o g et clear on who ha s

the authority to create parameters, the Dean

or t he P re si de nt . T he p ol ic ies of th e B oar d

of Trustees say the President issues the

letter, but there's an appointment letter in

agreement between the parties. I'm just

trying to flesh out where it stops.

LA W J UDGE: All rig ht. Go a head .

M S. H OM ES V AN CE : I t hi nk , a gai n, i s

t ha t r el eva nt ? I w oul d s ay t ha t's no t

relevant. This witness didn't testify to

that issue.

L AW J UD GE : He d id t es tif y b ro ad ly t o

hiring.


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[Mutua, Cross] 264

M S. H OM ES V AN CE : H ir in g fa cu lt y b ut

n ot t he l ega li ty of, y ou k no w, t he t er ms of

an a ppo in tm ent l et te r f ro m a D ea n t o a

faculty member.

L AW J UD GE : W ell , I u nd er st an d t ha t

there is another matter pending that relates

to t ha t q ue sti on . W e'r e n o t h er e t o

litigate that.

MS. HOMES VANCE: Exactly.

LA W J UDGE: On the othe r h and --

M S. H OM ES V AN CE : W e'r e r ea ll y n ot h er e

to litigate that, and I think that's going

into irrelevant territory.

LA W J UDGE: On the othe r h and , w e have

an (a ) and a ( c) Charge here, and one of the

things we'll look at is possible evidence of

-- l et m e s t ep b ac k. A n or ma l e mp lo ym en t

type case including an (a) or (c) Charge,

your defense is, "We have legitimate

business or operational reasons for doing --

t ak in g t he a ct ion t ha t w e d id ." T he y can

counter that by saying, "Okay, sure, but the

stated reasons are, in fact, pretextual."

And on e of the things w e'l l look at to


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[Mutua, Cross] 265

determine pretext is whether or not they've

acted consistent with the policies,

procedures, practices and whatnot.

To the extent there's been an

allegation here, my understanding of where I

t hi nk C ou ns el is g oi ng w it h t hi s i s t ha t the

prior Dean has this agreement, and whether

or not that's consistent with University

policies or ABA rules or whatnot, I think

there 's some question a s t o that . So I

think there's conceivably possibly some

r el ev an ce h er e, s o I 'm g oi ng t o a llo w her to

continue.

Overruled.

MS. SINGER-BLUMBERG: Thank you.

MS . H OMES VA NCE: I think -- could we

have the question read back?

LAW JUDGE: That's fair enough.

Marlene.

(The pending question was read back by

the stenographer as follows:

"Q : So have yo u e ntered into an

a gr ee me nt o r a re you a war e of a d ea n

entering into an agreement with an applicant


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[Mutua, Cross] 266

in writing, a letter detailing their terms

and conditions and then the President

refusing to issue an appointment letter?")

L AW J UD GE : C an y ou a ns wer t ha t

question?

T HE W I TN ES S: N o, I c an not .


Q Si nc e y ou' ve b ee n D ea n, h av e y ou a pp oi nt ed

anybody?

A I d o not a ppoint f aculty m embers. I m ake

recommendations for them to be appointed.

Q Ha ve y ou n eg ot ia ted w it h a pp lic an ts f or

appointment along the lines of what you talked

about and entered into a written agreement?

A Yes, I have.

Q And in how many cases have you done that?

A I c anno t recall exactly, but more than five.

Q And in any o f t hos e c ase s, did the President and

Provost not then issue an appointment letter?

A They did.

Q I'm not clear on the answer. In every situation

did the President ultimately issue an appointment

letter?

A Yes, t hey did - - he d id.


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[Mutua, Cross] 267

Q Now, w hat a bout r enewals ? Do y ou g et i nvolved i n

those as well?

A Renewals for what?

Q Re ne wa ls of f ac ul ty m em be rs af te r t h ey 've

initially been hired to the Law School?

A You h ave t o b e more s pecific. I d on't know w hat

you're talking about. Are you talking about

tenure track faculty? Are you talking about

faculty?

Q Well, we were o n t enu re track faculty, so let's

stick with them.

A Yes.

Q Are you involv ed i n t he renewal process of tenure

track faculty?

A Yes.

Q And is it similar to what yo u d escribed?

A No, it is not.

Q Tell u s how t hat w orks.

A So renewals of, yo u k now , f aculty w ho are on

tenure track can take place in one of several

wa ys . T he f ac ul ty c an d ec id e t o r ec om me nd to t he

De an t ha t t he f ac ul ty m em be r n ot be r en ew ed . T he

De an c an d ec id e i f a f ac ul ty m em be r w il l n ot be

renewed, and the Dean can make that determination


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[Mutua, Cross] 268

without resorting to the President or the Provost.

Q D ec is io ns on r en ew al or n on re ne wa l - -

A Yes.

Q -- t hey s top a t the Dean?

A The Dean -- if the Dean makes a recommendation t o

the Provost, for example, that a faculty member

should not be renewed, my understanding is that

the Provost or the President would most likely not

reverse that decision.

Q Okay. So who d oes t he l etter c ome f rom

non-renewing?

A It c omes f rom t he D ean.

Q But if you decide to renew and make a positive

recommendation, who does the letter come from?

A It would -- I woul d m ake a recommendation to the

Pr ov os t - - t o t he P ro vo st t o - - t o r en ew t he

contract.

Q And then th e l et ter c omes from the Provost or the

President?

A Yes.

Q So you don't sign anything like you do on the

initial hire with the person in a renewal

situation?

A In m ost c ases y ou d o not.


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[Mutua, Cross] 269

Q You're familiar with the policies of th e Board o f

Trustees?

A Yes.

Q And are you familiar with the concept of a

qualified line?

A Refresh my memory.

Q Qualified r anks . So t here a re t enu re t rac k

faculty and there are non-tenure track faculty who

are on qualified appointments; correct?

A You w ould have to define " qualified" f or m e. What

does qualified mean?

Q Q ua li fi ed ac ad em ic r an k i s r an k h el d b y t hos e

members of the academic staff having titles of

lecturer or titles of academic rank preceded by

the designation "clinical" or "visiting" or other

similar designation. Okay?

A Okay.

Q So t ho se t it le s o f q ua li fi ed a ca de mi c r an k a r e n ot

eligible for tenure; correct?

A Th at 's m y un de rs ta nd in g.

Q A nd it s pe ci fic al ly s ay s "c li ni ca l" f oll ow ed by

the academic rank of assistant or associate

professor?

A (Nods head).


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[Mutua, Cross] 270

Q Wh ic h i s w ha t P ro fe ss or M al ka n h el d; c or re ct?

A Wh ic h i s w ha t P ro fe ss or M al ka n p ur po rt ed t o h ol d.

Q Have yo u e ver seen -- well, you introduced

yesterday actually appointment letters from the

President which had the title of clinical

associate professor and then clinical professor;

correct?

A My r esponse w as t hat - -

Q No. Di d y ou i ntroduce t hose s heets yesterday a s

part of your direct testimony?

A I saw the sheets.

Q A nd a re y ou a war e t h at e ve ry s ta te e mp lo ye e, l et' s

stick with the faculty, have a state title that

they're appointed to?

A Yes. I'm aware of that.

Q A nd P ro fe ss or M al ka n' s S ta te t it le i s c li ni ca l

professor?

A Again --

M S. H OM ES V AN CE : W el l, y ou r Ho no r, we

stipulate that we introduced that

appointment history yesterday and that

Professor Malkan held the titles that those

documents say, you know, that he held.

L AW J U DG E: F air e no ug h.


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[Mutua, Cross] 271


Q So n ow let's talk about h iring of qualified

academic rank faculty, which is lecturers and

others with the qualified rank of clinical or

visiting professor. The hiring process, is it

different than what you described on the tenure

track?

A Yes. It' s very different. It 's depending up on

the rank, the qualified rank that we're talking

ab ou t, it wo ul d b e v er y d if fe re nt . So y ou w il l

have to ask me specific questions about the rank

th at y ou w an t m e t o a ns we r y ou.

Q Well, y ou have, I think, three or four clinical,

either associate professors or professors, in the

Law School; right?

A Yes.

Q We re y ou i nv olv ed in t he a ppo in tm ent p ro ce ss of

any of those clinical professors?

A (No response).

Q The initial hire.

A No.

Q Okay. Have you hired any clin ical professor since

you've been Dean?

A I have just hired someone, b ut they have not


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[Mutua, Cross] 272

started work yet.

Q Clinical associate professor?

A Cl in ic al p ro fe ss or .

Q Full professor?

A No. Actually, I take that back. My mistake.

I'v e h ir ed a D ir ec to r of t he c li ni cs , n ot a

clinical professor.

Q Okay. Have you been involved in the re appointment

of a ny cl in ic al p ro fe ss or ? A nd I w an t to m ak e

clear, when I'm talking about clinical professors,

I'm talking about people who hold the State title

who are non-tenure track in a qualified rank.

A I h av e b ee n i n vol ve d i n t he r eap po in tm en t o f th re e

clinical professors.

Q And who is that?

A G eo rg e H ez el , S ue T om pk in s a nd T om D is ar e.

LA W J UDGE: How d o y ou spell the first

name? And tell u s t he third name agai n.

THE WITNESS: George Hezel, H-e-z-e-l.

Tom Disare, D-i-s-a-r-e. And Sue Tompkins,

T-o-m-p-k-i-n-s.

Q T he re ap po int me nt ?

A T he r ea pp oi nt me nt .

Q And in what way were you involved in those


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[Mutua, Cross] 273

reappointments? As Dean or on the committee?

A I was involved --

M S. H OM ES V AN CE : O bj ec ti on . V ag ue a s

to w ha t c omm it tee . L ac k o f fo un da tio n. She

s ai d " th e c om mi tt ee. " T he re' s n o - -

M S. S IN GE R- BL UM BER G: I 'm s or ry. T he

Committee on Clinical Review for Renewals.

A I w as involved in their reappointment a s the Dean

of the Law School.

Q In t hose t hree c ases?

A In those three cases, yes.

Q And before you were Dean , w ere you involved i n t he

reappointment of any other clinical title?

A As far as I can remember, there were no

reappointments before I became Dean.

Q We ll , y o u t es ti fi ed y es te rd ay t ha t y ou w er e

involved in the voting process of reappointing

Professor Malkan who holds a clinical professor

ti tl e. S o I 'm c onf us ed.

A I said that I was involved in a meeting in which

we were supposed to vote on his reappointment.

Q Right.

A Yeah. Supposed to vote on h is r eappoin tment.

Q You said actually I b elieve that the


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[Mutua, Cross] 274

recommendation was to reappoint him to a one-year

terminal appointment?

A As D ir ec to r of t he R es ea rc h a nd W ri ti ng P ro gr am.

Q Y ou d id n' t v ot e o n h is f ac ul ty ap po in tme nt ?

A We d id not vote on hi s f aculty appointment .

Q And in the case s y ou were invo lved i n i n renewing

those three other people --

A Uh-huh.

Q -- tell u s w hat the p rocess was.

A So what typically would h appen is that the

Clinical Promotion and Tenure Committee, which is

the body of all tenured faculty and all clinical

-- full clinical professors would meet to discuss

the reappointment of a clinical professor to

another three-year term. Every appointment is

th re e y ea rs . S o w he n t he a pp oi nt me nt i s u p, th is

particular committee would meet to discuss whether

this particular faculty member should be

reappointed based upon whether they have met, you

know, the requirements of their job description.

Q And that' s always the first step is the committee

me et s t o r ev ie w a nd m ak e a d ec is io n on

reappointment of a clinical professor?

A To m ak e a re co mm en da ti on to t he D ea n t o r ea pp oi nt .


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[Mutua, Cross] 275

Q So when Jeff came up for review in 2006 on his

reappointment, did that committee meet?

A When Jeff came up for review - - J eff formerly held

the title of clinical associate professor.

Q Right.

A At t he meeting that w e'v e been discussing here i n

2006 --

Q No, but I'm asking you if there was a meeting for

reviewing his reappointment to a new three-year

contract which was due in 2006.

A And that's what I'm trying to -- to respond to.

When w e met in 2006, we were suppo sed t o make a

determination on two issues regarding Mr. Malkan:

No. 1, as to w he th er he s ho ul d co nt in ue to h ol d

the position of Director of Research and -- Legal

Research and Writing, and, No. 2, whether he

should be promoted from associate clinical

professor to a full clinical professor.

Q And along with the promotion wou ld b e a renewal?

A Would be a renewal of three years.

Q N ow, n on re ne wal o f c l ini ca l f acu lt y, d o t h ey al so

go before the Promotion and Tenure Committee?

A N onr en ew al s of c lin ic al f ac ul ty w ou ld g o b ef or e

the Clinical Promotion and Renewal Committee.


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[Mutua, Cross] 276

Q Okay. And --

A A nd t he r eq ui re men ts th er e a r e t ha t t he D ir ect or

of the clinics would present a report to that

committee recommending to that committee whether a

particular clinical professor should be renewed.

Q And where does that come from, that the Director

of the clinics makes that report?

A The Director of th e c linics is required by our

byl aw s to ma ke t he -- to p re sen t a r ep or t b ef or e

the Clinical Promotion and Renewal Committee to

make that determination. In Jeff Malkan's case,

he w as n ot a m em be r o f t he c li ni ca l f ac ul ty a nd,

therefore, did not fall under the Director of the

clinics.

Q But he held a clinical title, the title of

clinical associate professor.

A And that' s precisely why I said yesterday that h e

was out of category.

Q That's your interpretation, but technically we

already have a stipulation. S o I need you to get

pa st t ha t. He h el d t he t it le o f c l ini ca l

associate professor; right? You don't have even

to answer that because we know that it's right.

So let's talk about the bylaws since you


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[Mutua, Cross] 277

raised them, and they are in the record.

A Sure.

Q Okay. I'm l ooking at what's b een in the r ecord as

Charging Party 8, which is the University of

Buffalo bylaws and standing orders of the faculty

for the Law School, and it specifically speaks to

the Clinical Promotion and Renewal Committee, and

it says that, "Renewal, dismissal, or termination

of t he a pp oi nt men t of a F ac ul ty M em be r w ho is on

an indefinitely renewable long-term contract ...

shall be recommended by a majority of the

Committee voting in person at the meeting." This

is C om mi tt ee o n C li nic al R ene wa ls . So in 2 00 8

wh en a d et er mi na ti on w as g oi ng to b e m ad e to

non-renew Professor Malkan from his position as

clinical professor, did you follow the bylaws and

send the committee his paperwork to make a

recommendation on his nonrenewal?

A No, I did not.

Q A nd y et t he by la ws d ic ta te d t hat c li ni ca l

nonrenewals go before the committee?

A I -- I did not send his matter of nonrenewal

before this particular committee because he was

out of category.


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[Mutua, Cross] 278

Q You a lready s aid t hat .

A Yes.

Q Just s o I 'm clear, wh o h ires the adjuncts for the

Law School?

A The adjuncts can be hired by the Dean.

Q By the Dean?

A Yes.

Q A nd n onr en ew als o f t he a dj un ct s?

A Can -- can be issued by the Dean.

LA W J UDGE: Mr . R eed , y ou need t o k eep

it q ui et . If yo u h av e s om eth in g t o t el l

t he m, y ou w al k u p a nd w hi sp er in t he ir e ar s.

Q How many faculty are in t he school, not counting

the adjuncts and the clinical faculty, roughly, if

you know?

A A re y ou t al ki ng a bo ut f ul l- ti me f ac ul ty or

part-time faculty, or are you talking about tenure

tr ac k f a cu lt y? W ha t do y ou m ean ?

Q I'm t al ki ng a bou t f ul l-t im e f acu lt y o th er t ha n - -

right -- full-time faculty.

A And how are you defining full- time?

Q Full-time is a hundred percent employment. I t's a

full-time position. There's only one definition

of full-time. How many roughly full-time faculty


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[Mutua, Cross] 279

do y ou h av e in t he L aw S ch oo l?

A I w ould s ay about fifty plus.

Q Fifty?

A Fifty plus.

Q And h ow m any a djuncts ?

A I canno t s ay f or sure , b ut it' s m ore than fifty.

Q More than fifty?

A Yes.

Q N ow, y ou t al ke d a bo ut w he n t h ese c om mi tt ee s, li ke

the Promotion and Tenure Review Committee, which

is comprised of the tenure track faculty and the

-- i s i t a ls o t he c li ni ca l f ac ul ty a re p ar t o f

that committee?

M S. H OM ES V AN CE : O bj ec ti on . A ss um es

-- she's mischaracterizing the evidence. We

have testimony that there is a Committee on

Clinical Promotion and Renewal. We don't

w an t t he wi tn es s to be c on fu sed an d h av e the

record unclear. I don't know what committee

she's talking about.

L AW J UD GE : M ake s ur e w e 'r e c l ea r w i th

specificity, and I'm not sure you

characterized the membership of that

committee accurately.


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[Mutua, Cross] 280

MS. SINGER-BLUMBERG: Okay, I'm sorry.

Let m e take a step back .

Q Let's t alk a bo ut f aculty m eetings . Who i s

eligible to attend a faculty meeting?

A It depends o n what kind of faculty meeting you'r e

talking about. There are many types of faculty

meetings.

Q Do y ou h av e r eg ul ar f a cu lt y m eet in gs ?

A Well, there are many regular - - t he re are many

regular types of faculty meetings.

Q Wh at t yp es o f f ac ul ty m eet in gs a re t he re?

A So t he re a re f ac ul ty m ee ti ng s w hi ch d is cu ss

governance in the Law School which is attended by

all tenure track and tenured faculty. There are

faculty meetings on appointments for tenure track

faculty which are attended by all tenure track and

tenured faculty.

Q Do t he se h av e d if fe re nt n am es, th es e f ac ul ty

meetings? Do people know what faculty meeting it

is?

A Ab so lu te ly . T he re a r e fa cu lt y me et in gs t ha t, y o u

know, which are designed for the appointment of

clinical faculty, which include clinical faculty,

tenure track and tenured faculty. You know, so


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[Mutua, Cross] 281

th er e a re ma ny t yp es of f ac ul ty m ee ti ng s. Y ou

have to specify which faculty meeting you're

talking about.

Q Which faculty meetings are clinical faculty

allowed to attend?

A Cl in ic al f ac ul ty c an a tt en d f acu lt y m ee ti ng s on

governance except those meetings that either

deliberate on tenure or deliberate on appointments

for tenure track faculty.

Q Was there a time when clinical faculty were n ot

allowed to attend those other faculty meetings

th at t he y c an n ow a tt en d? W as n't t he re a c ha ng e?

A Prior to, I would say -- I don't know the exact

date here, but prior to I think 2007, clinical

faculty could not attend faculty meetings.

Q Y ou s ai d y e st er da y t ha t t h e R es ea rc h a n d W ri ti ng

instructors came and went. Sometimes they'd say,

"S ee y ou in t he h al l, " a nd y ou' d n eve r s ee t he m

ag ai n, t he y' re on t he ir w ay o ut t he d oo r. W er e

you aware that over Jeff's tenure as Director, he

increased the number of instructors that would

teach in the Research and Writing Program?

A The Director of th e p rogram has n o c apacity o r

ability or authority to increase the number of


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[Mutua, Cross] 282

faculty teaching in the program.

Q He h as the ability to make that request , though,

and persuade the Dean to do that; right?

A Yes.

Q A nd w er e y ou a wa re t ha t t ho se n um be rs a ct ua ll y

went up over his time as Director?

A I was not counting.

Q But you were concerned a bout the Research and

Writing Program the whole time?

A Yes, I was.

Q Did you realize that the number o f s ections went

up a nd t he n um be r of st ud en ts i n e ac h s ec ti on w en t

do wn a s a r es ul t o ve r t he p er io d t ha t h e w as

Director?

A Again, I wa s n ot aware that the section s c hanged

-- number of sections changed.

Q Do you get a copy or is there a master copy of the

schedule of what's being offered in the Law

S ch oo l? Do t he f ac ul ty h av e a cc es s to t ha t?

A What do you mean?

Q I mean do you as a faculty member, can you see

what the fall schedule is, what courses are being

offered?

A Ab so lu te ly . A bs ol ut el y.


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[Mutua, Cross] 283

Q Now, i n 2 006 when Professor Malkan came up for

review and promotion, renewal and promotion, you

said that it w as a t a faculty meeting. Wa s i t a

general faculty meeting or a meeting of the

Promotion and Tenure Committee to vote on his

promotion?

A It was a faculty of tenured faculty -- it was a

meeting of tenured faculty. Sorry.

Q To v ote o n his p romotion?

A It w as a meeting o f t enured faculty to discuss - -

on t he a ge nd a w er e t wo i ss ue s: T o d is cu ss w he th er

Jeff Malkan should continue in his position as

Director of Legal Research and Writing, and,

secondly, to determine whether we should make a

recommendation for him to be promoted from

clinical associate professor to full clinical

professor.

Q There w as action that on the agenda before the

meeting commenced?

A It was -- that was what the Vice Dean for

Academics mentioned.

Q Mentioned. When a meeting i s c alled, i s t here a n

agenda that's sent out before the meeting?

A I c an no t r ec al l w he th er t he re w as a p ar ti cu la r


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[Mutua, Cross] 284

agenda, but I d o recall that once we were in the

me et in g, we w er e t ol d t ha t t hi s i s w ha t we w er e

going to be discussing.

Q Do y ou re me mb er g et ti ng a d os si er o n P ro fe ss or

Malkan for review for promotion?

A I r em em be r g et ti ng a d os si er f or P ro fe ss or M al ka n

on his performance as Director of the Legal

Research and Writing Program, not a dossier for

promotion. I don't remember that.

Q But when a faculty member co mes u p for promotion,

even a clinical faculty professor, a dossier is

put together; right?

A Yes.

Q So e ve n t ho ug h y o u d on't r eme mb er , p re sum ab ly a

dossier was put together for him?

A I don't remember.

Q And the dossier typically includes information on

performance from a number of sources?

A T he d o ssi er f or c l in ic al f ac ult y?

Q Yes. For promotion.

A T he d os si er f or c li nic al f ac ult y w oul d be pr ep ar ed

by the Director of the Clinics and presented to

the faculty for discussion, and it would focus on

the faculty member's competence in running a


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[Mutua, Cross] 285

clinic.

Q So would a dossier have been put together by the

Director of the Clinics for Malkan in 2006?

A At t hi s p ar ti cul ar m ee ti ng, th er e w a s n o D ir ec to r

of C li ni cs . T he m ee ti ng t ha t I 'm - - t ha t we' re

talking about.

Q Th er e w as no D ir ec to r i n e xi st en ce o r p re se nt ?

A There w as no Director present to present u s w ith

Malkan's -- Mr. Malkan's dossier.

MS . HOMES V ANCE: Objection. It

assumes facts not in evidence. The witness

has already testified that since Professor

Malkan did not work in a clinic, that he is

not being reviewed by anyone that would have

run a clinic, so we're really mixing

evidence here.

L AW J UD GE : W hat we h av e he re , f ra nk ly ,

is t he f ac t t ha t Mr. M al ka n w as in t hi s

t it le , a nd we h av e t he D ea n w ho ha s

testified that he didn't believe that was an

appropriate title. He keeps saying "out of

category." Obviously, that can lead to

some, let's call them procedural problems.

I d on 't t hin k t he re' s - - t he re m ay be a


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[Mutua, Cross] 286

dispute broader about the nature of his

title and what resulted from that, but I

don't think that she's assuming any facts

n ot i n e vi de nc e. It 's j us t t ha t t he re 's

disagreement, I suppose, over the

consequence of, as the Dean has testified,

that Mr. Malkan was, quote, out of category.

MS. HOMES VANCE: So I think what -- I

g ue ss l et m e m ak e c lea r m y o bj ec ti on. I

think that Ms. Singer-Blumberg's question is

a ssu mi ng th at if t he re w as a D ir ect or of the

clinics, that that Director of the clinics

would have been responsible for preparing a

dossier on Mr. Malkan and presenting it to

the committee, to the Committee on Clinical

Promotion and Renewal or to a faculty

meeting, and that is against what the

testimony that the Dean has already

testified to. That's really assuming a fact

not in evidence, I believe.

LA W J UDGE: I don 't read i t t hat way.

If you think it's going in that direction,

that's something you can certainly ask on

Redirect.


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[Mutua, Cross] 287

So let's move along.

Q You testified --

LA W J UDGE: In my mind I'm keeping

things clear, and I think it's probably as

clear on the record. I don't think it 's --

r ig ht n ow i t' s n ot c le ar , b ut if y ou t hi nk

it's not, then clarify it then on rebuttal.

M S. H OM ES V AN CE : T ha nk y ou.

L AW J UD GE : I d on 't t hi nk th er e' s b ee n

any sort of assumptions just yet.

M S. H OM ES V AN CE : T ha nk y ou, yo ur

Honor.

MS. SINGER-BLUMBERG: Thank you.

BY MS. BLUMBERG:

Q You testified that on e o f t he things that was

discussed on the internal agenda once the meeting

started was Professor Malkan's promotion. You

al re ad y t es ti fi ed to t ha t. So as p ar t of t he

promotion process in the Law School, is a dossier

normally put together? Not necessarily by the

clinical director or the Director of clinics, but

by s om eo ne , is a d os si er p ut t og et he r w he n a

promotion package comes up?

A Yes.


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[Mutua, Cross] 288

Q Were th ere minutes of this meeting i n 2 006 ?

A The -- the Promotion and Tenure Committee, or the

Clinical Promotion and Renewal Committee, does not

-- do not keep minutes.

Q And do you remember how many people were in

attendance at that meeting?

A Oh, I c an't recall, b ut I wo uld say roughly m aybe

-- I would say twenty roughly.

Q Do y ou remember whether t he ABA 4 05( c)

requirements were read at that meeting by Sue

Mangold?

A No, I do n ot recall that.

Q Were yo u f amiliar at that time with the 40 5(c )

requirements?

A Yes, I am. I was and I am today.

Q And by that point in time do you recall that the

three of the other clinical professors had already

been promoted to full professor?

A I cannot recall.

Q So at that meeting you said one of the things on

the agenda was the removal -- whether to remove

Malkan as Director of the Research and Writing

Program?

A Wh et he r t o t er mi na te h is d ire ct or sh ip o f t he


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[Mutua, Cross] 289

program, yeah.

Q N ow, y ou t es ti fi ed y es te rd ay t ha t a s D ea n, t he

Dean has exclusive authority on administrative

a ppo in tm en ts . It d oe sn' t h a ve to g o t o a

committee. It doesn't have to be discussed with

t he f ac ul ty . Y ou c an g iv e t ho se o ut a nd ta ke t he m

away as you please, basically?

A Sure.

Q And the direct orship is o ne of those

administrative appointments?

A Absolutely.

Q So there was no reason for it to go before this

committee?

A There's no reason for it to go before the

committee, but the committee can discuss whatever

it wants to discuss.

Q A nd y ou t es ti fi ed a ct ua ll y t ha t i t w as y ou r d es ir e

that Malkan be immediately removed and out of the

bu il di ng . H e s ho ul dn 't e ve n b e g iv en a y ea r to

find new employment.

A It w as my proposal to that committee that we

should terminate Jeff Malkan as Director of the

program because the program had failed.

Q Did you realize that terminating him from the


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[Mutua, Cross] 290

Director of the program would have zero impact on

his clinical faculty appointment?

A Let m e p ut i t t his way: Jeff Malkan, I understood

Jeff Malkan's appointment as Director of the

program to be connected to his appointment as an

instructor in the program.

Q Did you know at that time that he taught other

classes completely outside of Research and

Writing?

A Any faculty member ca n t each any course that the

Dean permits h im t o t each. So I would not be

surprised if he was teaching other courses.

Q So y ou r u nd er sta nd in g t ha t h i s a pp oi nt me nt as

Director was -- I don't remember what words you

us ed - - h ow it r el ate d t o h is j ob a s a n i ns tr uc tor

in the program basically, what was that

understanding based on?

A My u nd er st an di ng - - m y u nd er st an din g w as th at if

Je ff c ea se d to be a D ir ec to r o f t he p ro gr am , he

wo ul d a ls o c ea se t o b e a n i ns tr uc to r i n t he

program.

Q H ow d oe s t h at i mp ac t h is c lin ic al a pp oi ntm en t, o r

how did you understand it to impact his clinical

appointment?


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[Mutua, Cross] 291

A As far as I was concerned, Jeff never had a

clinical appointment.

Q And is it your testimony that there was no vote

held on his promotion at that meeting?

A Promo tion for what ?

Q Fr om c li ni ca l a s so ci at e t o f ul l p r of es so r.

A My understanding is that we did not act on that

particular item.

Q There was no vote?

A There w as no vote on that particular issue .

Q On t he promotion issue?

A Yes.

Q So as far as you knew , a fter that meeting he

wasn't going to be promoted because nobody had

voted on it?

A That's correct.

Q And it had to be voted on by the committee?

A It had to be voted on by the committee.

Q A nd d id t he c om mi tt ee h ol d a d if fe re nt m ee ti ng

where they held that vote?

A Repeat the questio n.

Q D id t he c om mi tt ee h ol d a s epa ra te m ee ti ng ,

reconvene to hold a vote on his promotion?

A No, they did not.


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[Mutua, Cross] 292

Q So when you became Dean a nd you said that' s w hen

you first saw his appointment letter, is it your

testimony, is it your claim that Nils Olsen

promoted him without going to the committee and

getting a vote?

A It is my understanding that the Dean acted ultra

vires.

L AW J UD GE : C an y ou s pe ll t hat ?

THE WITNESS: U-l-t-r-a v-i-r-e-s.

A Th at h e a ct ed w it ho ut a r ec om me nda ti on f ro m t he - -

from the committee.

Q I want to go back to something else you said about

hiring and firing. We talked generally about

renewals and nonrenewals and letting people go,

and you said that sometimes the decision comes

from yo u, but i t then has t o g o t o the Provost an d

the President, sometimes it just stops at you, and

y ou g av e, wh en we w en t t hr ou gh t he e xa mp le s o f t he

different categories, you said when it comes to

adjuncts, for instance, it comes from you?

A Yes.

Q Y ou, s pe ci fi ca ll y?

MS . H OMES VA NCE: Could we just take a

moment, please, before he answers that


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[Mutua, Cross] 293

question?

LA W J UDGE: Why?

MS . H OMES VA NCE: I just need to talk

to Jeffrey for a moment so I understand

where we're going.

L AW J UD GE : L et 's t ak e a fi ve m in ut e

break.

M S. H OM ES V AN CE : T ha nk y ou.

(A recess was taken).

LA W J UDGE: I think we could all

benefit from having the last question read

back.

(The pending question was read back by

the stenographer).


Q We w ere t alking a bout - -

M S. H OM ES V AN CE : I h av e a n o bj ec ti on .

L AW J UD GE : To t he q ue st io n, "Y ou ,

specifically"?

MS. HOMES VANCE: I -- I think it

assumes a fact no t i n ev idence. I do not

recall any testimony yesterday of the Dean

speaking to adjunct professors' hiring,

firing, nonrenewal, renewal. I don't


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[Mutua, Cross] 294

remember any testimony about adjuncts. I

c ou ld be wr on g b ut - -

LA W J UDGE: I think as the phrase

adjunct, didn't we use the phrase lecturer?

M S. H OM ES V AN CE : I t hi nk we' re g oi ng

-- my objection would be outside the scope

of direct and really irrelevant in any

e ve nt , b ut I d on 't t hi nk I o pe ne d t he d oo r

on any adjunct testimony yesterday. It's

r ea ll y n ot r el ev an t to t hi s c as e. So we' re

going down a whole different path.

L AW J UD GE : L et m e a s k t hi s q ue st io n:

Where are you going with this?

MS. SINGER-BLUMBERG: Where I'm going

w it h t hi s i s p ar t of t hei r c ase is t ha t t he

Dean acted autonomously. He wasn't aware

of, you know, employee relations contact

w it h M a rl en e C oo k a n d J i m N ew ton . He was

very insulated in his decision, and that's,

a ga in , o ne of th e b enc hm ar ks i s w ha t h e k ne w

about what was going on sort of underneath

h im w it h h is p eo pl e, if n ot w it h h im

d ir ec tly . So t hi s i nv ol ve d a de ci si on of

nonrenewal ultimately, which he says he made


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[Mutua, Cross] 295

independent of any knowledge of our

activity, UUP's activity in the case.

Issues of hiring and firing including

a dju nc ts a re a n i ss ue a bo ut , d oe s h e d o t hi s

autonomously or does he do this in

consultation with his Vice Deans, and that's

w hy t hi s is r el ev an t in t er ms of t he

adjuncts.

L AW J UD GE : So y ou r p oi nt wh er e y ou 're

going is to determine the process for

deciding or making determinations on renewal

and nonrenewal, the internal workings, if

you will, with the Dean working with Vice

Deans, et cetera.

MS. SINGER-BLUMBERG: Right.

MS. HOMES VANCE: Except that Professor

Malkan is not an adjunct, and there's been

no t es ti mo ny a bo ut a dj un ct s. It 's a

completely new subject area. Professor

Malkan is not an adjunct.

L AW J UD GE : T hat 's a g oo d p oi nt.

What's the relevance of adjuncts? The

p ro ce ss ma y - - I don 't k no w i f t he p ro ce ss

is the same. I don' t k now if we need to go


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[Mutua, Cross] 296

d ow n t ha t p a th . Why a dju nc ts ?

MS. SINGER-BLUMBERG: Because he said

that he makes the final decision himself,

and we're talking about his credibility on

t he s ta nd , an d I h ave e vi de nc e t ha t h e

doesn't make that final decision on the

adjuncts because he doesn't even send out

the letter to the adjuncts.

LAW JUDGE: Did he say that he did?

MS. SINGER-BLUMBERG: He said that it

r es ts w it h hi m, t ha t he 's t he o ne w ho m ak es

the final determination. It doesn't go

a nyw he re ot he r t ha n him . S o I 'm j us t tr yi ng

to get at what is that final determination

and who else is involved. And I know of a

specific category of employees where he

clearly is not involved. Yet he testified

that he' s - - the buck s tops with h im and he

is the one who makes the decision.

M S. H OM ES V AN CE : A ga in , yo ur H on or ,

there was no testimony about the adjuncts.

So they're assuming facts not in evidence

a nd a ls o ou ts id e the s cop e of d ir ec t. A ll

the testimony that Ms. Singer-Blumberg has


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[Mutua, Cross] 297

now attributed to the Dean was on categories

of employees other than adjuncts. This is

an e nt ir el y n ew c at eg or y - - t hi s i s a n

entirely new line of questioning, and it's

not relevant.

LA W J UDGE: I don 't recall a line ab out

adjuncts, but just because I don't recall

doesn't mean it didn't happen, but I'm also

not sure , I tend to agree with you. I f t his

was not testified about yesterday on Direct,

then we're going into a different area that

I' m n ot s ur e i s r el ev an t. If we 'r e t al ki ng

a bo ut t he p ro ces s t ha t i s e ng ag ed i n t o

determine renewal or non-renewal or

promotion, and we've heard plenty of

testimony about that with respect to the

clinical and we've also heard it on

full-time tenured faculty, and there was

some discussion earlier today at least about

adjuncts, but I'm not sure that that

discussion was about -- I'm not sure it's

relevant, frankly.

Convince me otherwise, Ms.

Singer-Blumberg. Why is the hiring process


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[Mutua, Cross] 298

for the renewal process for adjuncts

relevant to what happened with Mr. Malkan?

MS. SINGER-BLUMBERG: Again, I think it

j us t g oe s t o h ow the D ea n p re se nt ed h is

authority and how he makes his decisions and

he s po ke to a dj un ct s in t ha t p r oc es s. So

I'm just trying to delve a little deeper

into it.

LAW JUDGE: There was some discussion

a bo ut ad ju nc ts . I'l l b e h on es t, I do n't

remember exactly what it was.

MS . H OMES VA NCE: That was , a s yo u

s ai d, to da y a nd t ha t w as o n M s.

Singer-Blumberg's questioning, which that's

w hy I as ke d f or t he br ea k b ec au se t he n I

realized that there's no testimony about

adjuncts yesterday, and it's not relevant.

So t he D ea n h as n ev er m ad e a ny

representations about his authority with

regard to hiring, firing, renewing, not

renewing, promoting, whatever, adjuncts.

There's been nothing about adjuncts. This

is outside the scope of Direct, irrelevant

to the case generally. Ms. Singer-Blumberg


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[Mutua, Cross] 299

s ay s s he wa nt s t o t ry t o i mp ea ch t he D ea n's

c re di bi li ty , b ut the o nl y w ay to d o t ha t is

if there's foundational testimony that now

he's, you know, is proven untrue, and since

there's no foundational testimony from the

Dean about adjuncts, that that really

doesn't fly.

S o I wo ul d a sk t ha t yo u f or ec lo se a ny

further testimony about adjuncts.

LA W J UDGE: I' m g oi ng t o l et you ask

some questions here because there was some

testimony about the process of adjuncts.

I'll be honest, I don't remember exactly

what the scope was and when it happened,

even if it was yesterday or today.

M S. H OM ES V AN CE : T ha t w ou ld ha ve b ee n

today.

LA W J UDGE: I believe i t w as this

morning. The days tend to blend together

sometimes.

M S. H OM ES V AN CE : T ha t' s w hy I'm s ay in g

t ha t t hi s i s - - j us t b ec au se t he re wa s a

question or two that slipped in earlier

d oe sn 't m ea n t ha t n ow t he d oo r i s o pe n


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[Mutua, Cross] 300

because, again, the evidentiary standard

would be whether this is outside the scope

of D ir ec t a nd w he the r i t's -- a nd t he n a ls o

whether it's relevant. I understand if it's

w it hi n D ir ec t, i t w oul d h av e t o be -- but

obviously w e all know h ow to argue that. If

it's within Direct, the scope of Direct, I

understand that that opens the door, but

foundationally it's outside the scope of

Direct, which occurred yesterday; therefore,

t he f ac t th at t he re may h av e b ee n a q ue sti on

about adjuncts a few minutes ago doesn't

then open the door for further testimony on

adjuncts.

L AW J UD GE : T he o th er q ue st io n i s, h e' s

here. She can call him and ask him as her

o wn w it ne ss . So to s om e d e gr ee , y ou k no w,

she can ask him leading questions if that

were the case, bu t - - s he would be able t o

ask him leading questions unless she got a

hostile witness charge, which wouldn't be

terribly difficult. So to some degree we're

arguing over semantics, and practicality

trumps that.


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perb transcript - april 1 2010

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