from cross-examination of Dean Makau W.

Mutua, April 1, 2010 (see bold type at bottom)

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?

Yes.

Were there minutes of this meeting in 2006?

The -- the Promotion and Tenure Committee, or the

Clinical Promotion and Renewal Committee, does not -- do not keep minutes.

And do you remember how many people were in

attendance at that meeting?

Oh, I can't recall, but I would say roughly maybe

-- I would say twenty roughly.

Do you remember whether the ABA 405(c)

requirements were read at that meeting by Sue Mangold?

No, I do not recall that.

Were you familiar at that time with the 405(c)

requirements?

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

And by that point in time do you recall that the

three of the other clinical professors had already been promoted to full professor?

I cannot recall.

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?

Whether to terminate his directorship of the

program, yeah.

Now, you testified yesterday that as Dean, the

Dean has exclusive authority on administrative appointments. It doesn't have to go to a

committee. It doesn't have to be discussed with the faculty. You can give those out and take them away as you please, basically?

Sure.

And the directorship is one of those

administrative appointments?

Absolutely.

So there was no reason for it to go before this

committee?

There's no reason for it to go before the

committee, but the committee can discuss whatever it wants to discuss.

And you testified actually that it was your desire

that Malkan be immediately removed and out of the building. He shouldn't even be given a year to find new employment.

It was my proposal to that committee that we

should terminate Jeff Malkan as Director of the program because the program had failed.

Did you realize that terminating him from the

Director of the program would have zero impact on his clinical faculty appointment?

Let me put it this 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.

Did you know at that time that he taught other

classes completely outside of Research and Writing?

Any faculty member can teach any course that the

Dean permits him to teach. So I would not be surprised if he was teaching other courses.

So your understanding that his appointment as

Director was -- I don't remember what words you used -- how it related to his job as an instructor in the program basically, what was that understanding based on?

My understanding -- my understanding was that if

Jeff ceased to be a Director of the program, he would also cease to be an instructor in the program.

How does that impact his clinical appointment, or

how did you understand it to impact his clinical appointment?

As far as I was concerned, Jeff never had a

clinical appointment.

And is it your testimony that there was no vote

held on his promotion at that meeting?

Promotion for what?

From clinical associate to full professor.

My understanding is that we did not act on that

particular item.

There was no vote?

There was no vote on that particular issue.

On the promotion issue?

Yes.

So as far as you knew, after that meeting he

wasn't going to be promoted because nobody had voted on it?

That's correct.

And it had to be voted on by the committee?

It had to be voted on by the committee.

And did the committee hold a different meeting

where they held that vote?

Repeat the question.

Did the committee hold a separate meeting,

reconvene to hold a vote on his promotion?

No, they did not.

So when you became Dean and you said that's when

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?

It is my understanding that the Dean acted ultra

vires.

LAW JUDGE: Can you spell that?

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

That he acted without a recommendation from the --

from the committee.

-----Original Message----From: markus.dubber@utoronto.ca Sent: Wednesday, June 02, 2010 10:43 AM To: Jeffrey Malkan ; sara.faherty Subject: Re: question about my contract renewal Hi Jeff: I don't have super detailed memories of the meeting, but to the best of my recollection, as they say, here goes: There was discussion about the LRW program and there was discussion about you. People talked about the direction of the program and made more or less vague noises about reimagining the program, perhaps by integrating appellate advocacy in some form or another (I associate Lucinda and Jim Gardner with this sort of talk). Some people wondered whether you were the right person to lead this reimagination effort; others thought you were; yet others weren't all that excited about the need to do much reimagining, since the program was doing just fine as it is, though of course it's always nice to keep improving things. Whatever, at some point, though, these issues (i.e., your promotion vs. The Future of the Program) were separated--since the two issues were, in fact, separate--and a vote was held on the personnel issue (which ostensibly was the point of the P(romotion)&T(enure) Committee meeting, as opposed to a wide ranging discussion of what sort of ideas we might have about a LRW program). That vote, as I remember it, came out in your favor, with a majority voting to grant you tenure as a clinical professor. There was also some sort of recommendation, I think, to be made to the dean, somehow, that he or the faculty or both should take a look at the LRW program in the near future (perhaps

after a year?). But it was clear, as I remember it, 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. In other words, the question whether you would be the right person to run the program whenever this revision would take place was answered, and answered clearly and explicitly, in the affirmative. If I remember correctly, again, the point of the vote was to cut short a meandering discussion of all things LRW, and, again, 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, and if, the time came to review it in a year or so, as the dean might decide) was answered in the affirmative. Best, Markus Markus Dubber Professor of Law University of Toronto www.law.utoronto.ca/faculty/dubber

On Wed, Jun 2, 2010 at 8:52 AM, Jeffrey Malkan <jeffrey_malkan@msn.com> wrote: > Hi Markus, > > Could you do me a favor and give me your response to Makau Mutua's statement > on pp. 68-73 of the attached transcript? As you will see, he claims that in > the spring of 2006 the P&T Committee voted to terminate my employment on one > year's notice. This is very troublesome to my case, not to mention > disturbing for other reasons, because he made the statement, based on > personal knowledge, on the record in a judicial proceeding and under oath. > Of course, I was not present at the meeting myself so I have had to rely on > what was told to me by Nils, Sue, and others. Thanks! > > Best, > > > Jeffrey

-----Original Message----From: Nils Olsen Sent: Monday, April 05, 2010 11:59 AM To: Jeffrey Malkan Subject: Re: question about my promotion to Clinical Professor Hi Jeff. Let me assure you that I have never lied to you. 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. As a result, Sue Mangold presided. Shortly after the meeting concluded, Sue called and we had an extensive conversation, both about the result -- she informed me that the faculty voted to approve your reappointment -- and about her presentation to the faculty concerning the terms of the reappointment -- that it was subject to the ABA standards on clinical appointments and was, accordingly a multi-year appointment with termination only for cause. As you know, to save time and to ensure that the contract conformed to the terms presented at the meeting, Sue prepared the draft that you and I eventually signed. As I am sure you are aware, Sue is a person of the highest integrity and honesty. She would never lie about the results of the meeting and I have absolute confidence in her report about the proceeding. Moreover, there is simply no reason that either of us would have to misrepresent the faculty vote in such a manner. For what it's worth, I also had at least one conversation after my return about the meeting and vote with a colleague that was entirely consistent with reappointment. I hope that this reassures you and contributes to at least a relative peace of mind concerning this matter. best, Nils On Fri 04/02/10 8:09 AM , "Jeffrey Malkan" jeffrey_malkan@msn.com sent: > Dear Nils, > > I think I need to inform you of something that happened at the PERB > hearing on March 31. Makau Mutua testified under oath that the P&T > committee, on April 19, 2006, voted to grant me a one-year terminal > contract as Director of the R&W Program. He said that the faculty > did not vote to promote me to Clinical Professor, and, for this > reason, among others, he considered your subsequent letter of > appointment voidable at his discretion. He said that you not only > failed to implement the P&T Committees recommendation that my > employment be terminated at the end of the 2006-07 academic year, but > also failed to inform the faculty of what you had done. He said that

> he only learned of my purported promotion to Clinical Professor when > he inherited the files of the Deans Office in January 2008. > > Obviously the alternatives are that you and Sue misled me when you > reported the results of that vote to me, or that Makau Mutua > committed perjury. I have to assume that the latter is the case, > but for my own peace of mind, I wish that you would confirm that I > was correctly informed about the P&T Committees action on my > promotion. Im sorry to have to make such an odd request. This > situation has developed in ways that no one could have anticipated. > The transcript of the hearing will be available in about six weeks, > and I will forward copies to you and Sue. > > Sincerely, > Jeffrey > P.S. Im copying Sue and Dianne on this message. > -----Original Message----From: Shubha Ghosh Sent: Wednesday, June 02, 2010 9:32 AM To: Jeffrey Malkan Subject: Re: important question Jeff I have looked pages 68-73 over, and also read a little but beyond. The statements are troubling. As someone who was at the meeting, I would agree only with the point that there was a lot of contention, but from a handful of people. The meeting was about as contentious as other meetings regarding promotions and appointments. I do not remember that the resolution was to terminate you after a year. The resolution, as I remember, was to retain you and promote you, but to review the structure of the program and work with you to review and possibly rethink it. If you want an affidavit from me, I would be glad to supply it. I can testify to the above as well as report on my experiences with the school. Shubha Ghosh http://ssrn.com/author=41040 Professor of Law, Honorary Fellow, & Associate Director, INSITE The University of Wisconsin Law School 975 Bascom Mall Room 8111 Madison, Wisconsin 53706 (608) 262-1679(Office)

(608) 616-0486 (Google Voice)(preferred) ----- Original Message ----From: Jeffrey Malkan <jeffrey_malkan@msn.com> Date: Wednesday, June 2, 2010 7:54 am Subject: important question To: ghosh7@wisc.edu > Hi Shubha, > > Could you do me a favor and give me your response to Makau Mutua's > statement on pp. 68-73 of the attached transcript? As you will see, > he claims that in the spring of 2006 the P&T Committee voted to > terminate my employment on one year's notice. This is very > troublesome to my case, not to mention disturbing for other reasons, > because he made the statement, based on personal knowledge, on the > record in a judicial proceeding and under oath. Of course, I was not > present at the meeting myself so I have had to rely on what was told > to me by Nils, Sue, and others. Thanks! > > Best, > > > Jeffrey