Dear Council Members,

I'm writing to make sure that you are aware of the allegations I have made against President Satish K. Tripathi. They were published in the April 28, 2013 issue of the UB Spectrum on pages 4-5. The entire university community is now aware of his refusal to investigate credible evidence that the dean of the law school, Makau W. Mutua, on March 31-April 1, 2010, committed perjury in state court in Albany, which is a class D felony under the New York Penal Code. In addition, the article documents how President Tripathi has been responsible for the repression of the law school faculty in its attempts to exercise faculty self-governance, as required by the ABA, over the past three years.

On the whole, President Tripathi's attitude toward the law school and his failure to understand the legal system of our state has resulted in a serious corruption of the integrity of the legal profession and the rule of law. In fact, he appears to be eager to have this scandal escalate and unfold in court. Most recently Dean Mutua failed to appear for the mandatory ADR held at the offices of Hodgson Russ on March 1, 2013, which was a shocking expression of the university's disrespect for the United States court and the federal legal system.

As the litigation goes forward in the Western District of New York federal court and the NYS Court of Claims this year, all of the facts I have alleged will be documented in the public record and open to the scrutiny of the university's constituencies. President Tripathi's intransigent refusal to exercise his oversight responsibilities over his principal administrators and his cover-up of their malicious and criminal misconduct has the potential of causing serious damage to the university of the type most recently suffered by Penn State. I'm fully committed to dedicating all my abilities and resources to seeing that he and Dean Mutua are held accountable for undermining the integrity of an esteemed, 125year old institution. I'm writing to you in hope that you will address this matter with President Tripathi so that it can be resolved internally through mutually respectful discussion and compromise rather than in the harsh and unforgiving light of the judicial process.

Sincerely,

Jeffrey Malkan

Dear Council Members:

This is the apology I would demand from President Tripathi in order to withdraw my legal claims against the University (see below). I'm sending it to you because it concisely summarizes the facts that I'm prepared to establish in federal court.

Sincerely,

Jeffrey Malkan

Open Letter to Professor Jeffrey Malkan from President Satish K. Tripathi

This letter confirms that the university has agreed to pay restitution for the damages you have suffered as a result of its wrongful termination of your faculty appointment, in exchange for which you have agreed to withdraw your legal claims against the university and its personnel. The settlement is based on facts that you have alleged and we admit to be true.

1. On February 29, 2008, Dean Makau W. Mutua and Vice-Dean James A. Gardner demanded critiques of your job performance from your colleagues in the legal research and writing (LRW) program, less than two years after the Promotion and Tenure (P&T) Committee had deliberated on your job performance and recommended your reappointment, with an American Bar Association (ABA) Standard 405(c)-protected contract, to the rank of full clinical professor. Despite the unions intercession on your behalf, Dean Mutua refused to meet with you, or even to disclose what had been written about you, which included statements from Vice-Dean Gardner himself and Vice-Provost Lucinda Finley that were kept secret for no justifiable reason. This process was deficient in the most fundamental elements of fairness and propriety.

2. After receiving these reports, Dean Mutua removed you as director of the LRW program and, on August 28, 2008, the beginning of the following academic year, informed you by certified letter that he intended to terminate your employment on one-years notice.

3. Dean Mutua attempted to justify your dismissal by maintaining that your instructional position had been eliminated when the law school changed the name of its ABA-required LRW course to LAWR (legal analysis, writing, and research). Not only was this assertion entirely false, but your contract expressly provided that your faculty appointment was not tied to the first-year legal writing program in any form. Throughout that last year, he blocked your access to the mandatory consultation and review procedures put into place by the faculty for the protection of its integrity and academic freedom. Since then, he has refused to offer any accommodation or settlement that would allow you to resume your career elsewhere in the field of legal education.

4. Finally, on March 31 and April 1, 2010, Dean Mutua testified under oath to the Public Employment Relations Board that former-Dean R. Nils Olsens signature on your contract was unauthorized ultra vires because the P&T Committee, on April 28, 2006, adjourned without taking any action on your faculty appointment. In fact, the faculty on that day recommended that you be promoted to full clinical professor with an indefinitely renewable long-term contract.

The manner in which Dean Mutua exercised the authority of his office was offensive to the values pledged in the Faculty Code of Conduct, civility, decency, and mutual respect for all and an atmosphere free of abusive, demeaning, or unfair treatment. In addition, Dean Mutua, Vice-Dean Gardner, and Vice-Provost Finley failed to provide the principled leadership and disinterested professional judgment that we expect from all legal educators at this university.

I will rectify Dean Mutuas false testimony to PERB, as well as his misstatements to the ABA regarding the law schools compliance with Standard 405(c), and remove Vice-Dean Gardners and Vice-Provost Finleys secret critiques from the institutions records, together with those obtained under duress from your LRW colleagues. In addition, I wish to assure the legal community that we intend to review the years of Dean Mutuas administration for the purpose of correcting what went wrong and making this an occasion for the law school to renew its mission of legal education and civic engagement with a self-appraisal and a fresh start.

Dear Council Members: The attached documents support the allegations I have made regarding President Satish K. Tripathis refusal to investigate Dean Makau W. Mutuas subversion of the judicial process. I might add that his perjured testimony was quoted by ALJ Kenneth S. Carlson at the Public Employment Relations Board on November 8, 2012, and formed, at least in part, the factual basis of his decision. Makau Mutua, the current Dean of UB Law, testified that he attended the faculty meeting in April of 2006 during which it was discussed whether Malkan should continue as Director of the Program and be promoted from Clinical Associate Professor to Clinical Professor. Mutua, who at that time was a professor at UB Law, testified that the faculty discussed whether it was appropriate to promote Malkan to full Clinical Professor when he was not teaching in a clinic and that some members of the faculty questioned the appropriateness of Malkans initial appointment as a Clinical Associate Professor. Mutua further described a heated discussion on whether Malkan should continue as Director of the Program. Mutua testified that he recommended that Malkan be terminated immediately and that the Program be scrapped and restructured from scratch. Ultimately, the faculty did not vote on Malkans faculty appointment, but did resolve to recommend to Dean Olsen that Malkans administrative appointment as Director of the Program be continued for one year, during which time they would look for a new Director. In re United University Professions/NYSUT v. State University of New York (SUNY Buffalo), Case No. U28826, at 2-3 (Nov. 8, 2012), exceptions to ALJ decision filed Dec. 7, 2012, available on-line at http://www.scribd.com/doc/113902310/PERB-decision-ALJ-Kenneth-S-Carlson-11-8-2012 The dean of state university law school will be accorded credibility by almost any judge in any court of this state because of the esteemed office that he occupies. A violation of that public trust, by its very nature, compromises the integrity of the legal profession, a circumstance for which President Tripathi, in this instance, must bear a high degree of personal responsibility. Sincerely,

Jeffrey Malkan

Ex-Penn State president charged with perjury

Thu, Nov 1 2012

By Mark Shade HARRISBURG, Pennsylvania (Reuters) - A grand jury has charged former Penn State President Graham Spanier with participating in a "conspiracy of silence" to cover up child sex abuse by former football coach Jerry Sandusky, Pennsylvania's attorney general said on Thursday. The highest-ranking Pennsylvania State University official charged in the explosive case, Spanier, 64, was accused of child endangerment, perjury and criminal conspiracy, all felonies. He also faces misdemeanor counts of failure to report suspected abuse, conspiracy and obstruction of the administration of law. "This is not a mistake, an oversight or a misjudgment. This was a conspiracy of silence by top officials at Penn State, working to actively conceal the truth, with total disregard to the suffering of children," Attorney General Linda Kelly told a news conference. Two other officials, Athletic Director Tim Curley and retired Vice President Gary Schultz, also face new charges of child endangerment, criminal conspiracy and obstruction. They were charged in November 2011 with failure to report suspected abuse and perjury, and both have pleaded not guilty. Trustees fired Spanier and revered head football coach Joe Paterno in November 2011 in the wake of the charges against Sandusky. Paterno died in January of lung cancer. Spanier, Curley and Schultz, whose job included heading the university police, are accused of concealing information about suspected abuse involving Sandusky, Kelly said. The abuse included on-campus incidents in 1998 and 2001 that the three men discussed in detail, she said. OFFICE FILE Kelly said a grand jury issued a subpoena in December 2010 but relevant emails and other evidence were not turned over until April 2012, after the three men had left their jobs. Schultz kept a file about the 1998 and 2001 incidents involving Sandusky at his campus office and told staff members never to look in the file, Kelly said. It was removed from the office on the day charges against Sandusky were announced and delivered to Schultz's home. The file's existence, along with other information relevant to the grand jury investigation, was not disclosed until after Spanier was fired and trustees ordered full cooperation with the probe, she said. Spanier, a family sociologist and former University of Nebraska-Lincoln chancellor, has been on sabbatical as a tenured professor since being fired as president. He now has been placed on leave effective immediately, Penn State said in a statement. Arraignment for Schultz and Curley is set for Friday in Harrisburg, and Spanier will be arraigned on November 7. Schultz and Curley face trial on the perjury and failure to report charges in January. Timothy Lewis, an attorney for Spanier, rejected the charges as politically motivated. In an email, he said they were an attempt by Governor Tom Corbett to divert attention from his failure to warn about Sandusky. Corbett, a Republican, was re-elected attorney general in 2008 but left the job when he was elected governor in 2010. He named Kelly to replace him, and a new attorney general will be elected on Tuesday. Kelly is not seeking office. Curley's attorney, Caroline Roberto of Pittsburgh, denied the charges. Schultz's lawyer Thomas Farrell, also of Pittsburgh, did not reply to requests for comment. Daniel Filler, a law professor at Drexel University in Philadelphia, said prosecutors likely would argue that Spanier had covered up for Sandusky to protect the football program. "I expect prosecutors will make the case that Spanier's ticket was punched by the athletic program and he would be very protective" of it, he said. Curley was placed on leave after the 2011 charges and his contract will not be renewed when it runs out in June 2013, Penn State said. The National Collegiate Athletic Association, the governing body for college sports, slapped Penn State with a $60 million fine and voided 14 seasons of football victories. At least three of Sandusky's victims have sued Penn State. (Reporting by Mark Shade, Ian Simpson in Washington and Dave Warner in Philadelphia; Writing by Ian Simpson; Editing by Jackie Frank and Todd Eastham)