from cross-examination of Dean Makau W.Mutua, April 1, 2010 (see bold type at bottom) Q You testified that one of the things that was discussed on the internal agenda once the meeting started was Professor Malkan's promotion. You already testified to that. So as part of the 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 someone, is a dossier put together when a promotion package comes up? A Yes. Q Were there minutes of this meeting in 2006? 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 can't recall, but I would say roughly maybe -- I would say twenty roughly. Q Do you remember whether the ABA 405(c) Q Now.requirements were read at that meeting by Sue Mangold? A No. you testified yesterday that as Dean. Q So at that meeting you said one of the things on the agenda was the removal -. the Dean has exclusive authority on administrative appointments. I was and I am today. yeah. I do not recall that. 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. It doesn't have to go to a . Q Were you familiar at that time with the 405(c) requirements? A Yes. I am.whether to remove Malkan as Director of the Research and Writing Program? A Whether to terminate his directorship of the program. 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 And the directorship is one of those administrative appointments? A Absolutely. It doesn't have to be discussed with the faculty.committee. Q And you testified actually that it was your desire that Malkan be immediately removed and out of the building. You can give those out and take them away as you please. He shouldn't even be given a year to find new employment. A It was my proposal to that committee that we should terminate Jeff Malkan as Director of the program because the program had failed. basically? A Sure. what was that understanding based on? A My understanding -. I understood Jeff Malkan's appointment as Director of the program to be connected to his appointment as an instructor in the program. Q So your understanding that his appointment as Director was -.my understanding was that if Jeff ceased to be a Director of the program.how it related to his job as an instructor in the program basically.Q Did you realize that terminating him from the Director of the program would have zero impact on his clinical faculty appointment? A Let me put it this way: Jeff Malkan.I don't remember what words you used -. So I would not be surprised if he was teaching other courses. he would also cease to be 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 can teach any course that the Dean permits him to teach. or how did you understand it to impact his clinical appointment? A As far as I was concerned. Q On the promotion issue? A Yes. Q There was no vote? A There was no vote on that particular issue. Q So as far as you knew. Q And is it your testimony that there was no vote held on his promotion at that meeting? A Promotion for what? Q From clinical associate to full professor.Q How does that impact his clinical appointment. Jeff never had a clinical appointment. after that meeting he . A My understanding is that we did not act on that particular item. Q And it had to be voted on by the committee? A It had to be voted on by the committee. reconvene to hold a vote on his promotion? A No. 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. is it your testimony. .wasn't going to be promoted because nobody had voted on it? A That's correct. they did not. Q So when you became Dean and you said that's when you first saw his appointment letter. Q Did the committee hold a separate meeting. Q And did the committee hold a different meeting where they held that vote? A Repeat the question. e. that he or the faculty or both should take a look at the LRW program in the near future (perhaps . to be made to the dean. at some point. somehow. though of course it's always nice to keep improving things. yet others weren't all that excited about the need to do much reimagining. People talked about the direction of the program and made more or less vague noises about reimagining the program. 2010 10:43 AM To: Jeffrey Malkan . in fact. -----Original Message----From: markus. with a majority voting to grant you tenure as a clinical professor. your promotion vs. perhaps by integrating appellate advocacy in some form or another (I associate Lucinda and Jim Gardner with this sort of talk). as opposed to a wide ranging discussion of what sort of ideas we might have about a LRW program). That vote. June 02. as I remember it.ca Sent: Wednesday. A That he acted without a recommendation from the -- from the committee. The Future of the Program) were separated--since the two issues were. Whatever. others thought you were. came out in your favor. though. I think. There was also some sort of recommendation.LAW JUDGE: Can you spell that? THE WITNESS: U-l-t-r-a v-i-r-e-s. but to the best of my recollection.. these issues (i. Some people wondered whether you were the right person to lead this reimagination effort.faherty Subject: Re: question about my contract renewal Hi Jeff: I don't have super detailed memories of the meeting. separate--and a vote was held on the personnel issue (which ostensibly was the point of the P(romotion)&T(enure) Committee meeting. as they say. here goes: There was discussion about the LRW program and there was discussion about you. sara. since the program was doing just fine as it is.dubber@utoronto. utoronto. on the record in a judicial proceeding and under oath. Jun 2. Jeffrey Malkan <jeffrey_malkan@msn. not to mention > disturbing for other reasons. In other words. as I remember it. he claims that in > the spring of 2006 the P&T Committee voted to terminate my employment on one > year's notice. But it was clear. and.com> wrote: > Hi Markus. Thanks! > > Best. the point of the vote was to cut short a meandering discussion of all things LRW. If I remember correctly.ca/faculty/dubber On Wed. that you would be the person running the program at that time and that whatever review of the LRW program would occur would involve you as its director and clinical professor with tenure. I was not present at the meeting myself so I have had to rely on > what was told to me by Nils. This is very troublesome to my case.law. as the dean might decide) was answered in the affirmative. and answered clearly and explicitly. Markus Markus Dubber Professor of Law University of Toronto www. based on > personal knowledge. Sue. 2010 at 8:52 AM. in the affirmative. again. and if. Best. > > > Jeffrey . again. the time came to review it in a year or so. the personnel question (whether you should receive clinical tenure and remain as director of LRW and would be the right person to lead the program when. because he made the statement. > Of course. 68-73 of the attached transcript? As you will see. > > Could you do me a favor and give me your response to Makau Mutua's statement > on pp. and others.after a year?). the question whether you would be the right person to run the program whenever this revision would take place was answered. I hope that this reassures you and contributes to at least a relative peace of mind concerning this matter. Sue called and we had an extensive conversation. Sue Mangold presided.-----Original Message----From: Nils Olsen Sent: Monday.that it was subject to the ABA standards on clinical appointments and was. 2010 11:59 AM To: Jeffrey Malkan Subject: Re: question about my promotion to Clinical Professor Hi Jeff. Sue is a person of the highest integrity and honesty. As you know. to save time and to ensure that the contract conformed to the terms presented at the meeting.and about her presentation to the faculty concerning the terms of the reappointment -.she informed me that the faculty voted to approve your reappointment -. April 05. he considered your subsequent letter of > appointment voidable at his discretion. He said that . but > also failed to inform the faculty of what you had done. As I am sure you are aware. Let me assure you that I have never lied to you. I also had at least one conversation after my return about the meeting and vote with a colleague that was entirely consistent with reappointment. among others. He said that the faculty > did not vote to promote me to Clinical Professor. on April 19. and. Makau Mutua testified under oath that the P&T > committee. She would never lie about the results of the meeting and I have absolute confidence in her report about the proceeding. Shortly after the meeting concluded. accordingly a multi-year appointment with termination only for cause. best. 2006.com sent: > Dear Nils. He said that you not only > failed to implement the P&T Committee’s recommendation that my > employment be terminated at the end of the 2006-07 academic year. Moreover. You may recall that I was unable to attend your promotion meeting because my father was seriously ill at the time and I was with him in Madison. > > I think I need to inform you of something that happened at the PERB > hearing on March 31. both about the result -. Nils On Fri 04/02/10 8:09 AM . there is simply no reason that either of us would have to misrepresent the faculty vote in such a manner. Sue prepared the draft that you and I eventually signed. As a result. for this > reason. For what it's worth. voted to grant me a one-year terminal > contract as Director of the R&W Program. "Jeffrey Malkan" jeffrey_malkan@msn. > > Obviously the alternatives are that you and Sue misled me when you > reported the results of that vote to me. Honorary Fellow. but from a handful of people. This > situation has developed in ways that no one could have anticipated. I wish that you would confirm that I > was correctly informed about the P&T Committee’s action on my > promotion. Wisconsin 53706 (608) 262-1679(Office) . As someone who was at the meeting. or that Makau Mutua > committed perjury. I would agree only with the point that there was a lot of contention. > and I will forward copies to you and Sue. I’m copying Sue and Dianne on this message. If you want an affidavit from me. June 02. The statements are troubling. was to retain you and promote you. 2010 9:32 AM To: Jeffrey Malkan Subject: Re: important question Jeff I have looked pages 68-73 over.> he only learned of my purported promotion to Clinical Professor when > he inherited the files of the Dean’s Office in January 2008. I have to assume that the latter is the case.S. > but for my own peace of mind. The resolution. I’m sorry to have to make such an odd request. as I remember. > The transcript of the hearing will be available in about six weeks. The meeting was about as contentious as other meetings regarding promotions and appointments. > > Sincerely. I can testify to the above as well as report on my experiences with the school. > Jeffrey > P. I would be glad to supply it. but to review the structure of the program and work with you to review and possibly rethink it. & Associate Director. Shubha Ghosh http://ssrn.com/author=41040 Professor of Law. I do not remember that the resolution was to terminate you after a year. INSITE The University of Wisconsin Law School 975 Bascom Mall Room 8111 Madison. > -----Original Message----From: Shubha Ghosh Sent: Wednesday. and also read a little but beyond. 2010 7:54 am Subject: important question To: [email protected] Message ----From: Jeffrey Malkan <jeffrey_malkan@msn. > > Could you do me a favor and give me your response to Makau Mutua's > statement on pp. and others. Of course. > because he made the statement. This is very > troublesome to my case. on the > record in a judicial proceeding and under oath. not to mention disturbing for other reasons. 68-73 of the attached transcript? As you will see. > > > Jeffrey .com> Date: Wednesday.(608) 616-0486 (Google Voice)(preferred) ----. Thanks! > > Best. I was not > present at the meeting myself so I have had to rely on what was told > to me by Nils. > he claims that in the spring of 2006 the P&T Committee voted to > terminate my employment on one year's notice. June 2. based on personal knowledge. Sue.edu > Hi Shubha.
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