Artvoice: Buffalo's #1 Newsweekly
Home Blogs Web Features Calendar Listings Artvoice TV Real Estate Classifieds Contact
Next story:
Previous story:

UB Law School Dean to Step Down Amid Charges of Perjury

Makau Mutua

Makau Mutua

The UB News Center reports today that Makau Mutua will be stepping down as Dean of UB’s Law School effective December 19. He’ll then return to the law school faculty as SUNY Distinguished Professor and Floyd H. and Hilda L. Hurst Faculty Scholar. 

From the press release: 

UB President Satish K. Tripathi said that through Mutua’s leadership the UB Law School is “well positioned to achieve even greater prominence in legal education and scholarship.”

“I want to express my heartfelt thanks and deepest appreciation to Makau for his leadership and service to our university during his tenure as dean,” Tripathi said.

Mutua was educated at the University of Nairobi, the University of Dar-es-Salaam and Harvard Law School. But the statement from UB doesn’t mention anything that was reported last month in The Star newspaper based in Nairobi, Kenya. 

 
From The Star:
 
A Kenyan law professor based in US has been accused of committing perjury in an American court, his co-accused now wants the cases separated.

Makau Mutua, a human and civil rights activist, has been accused of lying in court.

He is sued for allegedly irregularly laying off Jeffrey Malkan, a lecturer at Buffalo Law School where Mutua is a Dean.

Evidence against Mutua is said to include sworn deposition testimony and sworn affidavits from seven tenured faculty members.

How embarrassing to all us local media outlets that this hometown story was broken over a month ago by a paper in Nairobi.

Among the legal documents connected to the case is the December 5, 2013 Declaration of President Satish K. Tripathi, submitted to the court in exchange for the Plaintiff’s withdrawal of a subpoena—wherein we learn that the former computer scientist and current SUNY at Buffalo president relies on staff to read his email (EDIT: mail) for him. At the time relevant to the complaint, Tripathi was serving as UB Provost.

 
From Tripathi’s declaration to the court:
 
Document 2 is a series of emails between various individuals on six pages. I am not sure whether or which emails were separately strung together or constitute a continuous email chain. I do not recall previously reviewing any of these emails. I note that one email was addressed to me and that there is a reply from me. I do not recall having any conversations with Mr. Mutua or anyone else concerning the matters discussed in these emails. I do recall generally the fact that there was a hearing involving the Public Employment Relations Board (“PERB”) and that Mr. Mutua conveyed by email that the University won the hearing. I do not recall having any conversations with Mr. Mutua or anyone else concerning the PERB hearing. I also note that there is an email from Mr. Mutua to James (Jim) Newton stating that I showed Mr. Mutua a letter—presumably the letter referenced at the bottom of page one which Mr. Mutua refers to as a letter to me from the union in which the union asks me to fire Mr. Mutua. I do not recall showing Mr. Mutua this letter. I also do not recall having any conversations with Mr. Mutua or anyone else about the referenced letter.
 
Document 3 is an undated letter from Mr. Malkan to “Council Members” with attachment. I do not recall seeing this letter or the attachment prior to this review. I also do not recall having any conversations with anyone about this letter or its contents. Based on the dates set forth in the letter, I assume that this letter was sent after litigation was commenced and therefore the letter would have been routed to SUNY Counsel by my staff who reads my mail, but I am unaware of any facts in this regard.
(Emphasis added)
 
Five of Tripathi’s twenty responses conclude with the same highlighted language.
 
Click here to read Tripathi’s declaration.
 
 
A source tells us that the federal case is a Section 1983 action for violation of the Fourteenth Amendment (right to due process) by a state official acting under color of state law—and the damages to which Malkan is entitled are punitive damages, emotional distress damages, and civil rights attorney fees, running potentially into the multi-million dollar range.
 
Previously, Mutua had been named by Governor Andrew Cuomo to sit on the ill-fated Moreland Commission to Investigate Public Corruption.

  • 25 Delaware

    Another fine member of the Moreland Commission

  • BufChester

    In fairness to Matua, it was his mail that he said a staff member reads not his email, and it would not be uncommon for someone in a position like Tripathi’s to have staff read their mail and redirect much of it to other people as appropriate. It simply wouldn’t be practical for him to read every piece of mail that’s addressed to him.

    • UncleBluck

      And we are supposed to believe that this person who reads Tripathi’s mail did not bring this issue up to him………?

  • Prince Andrew

    “Hakuna Matata Mutua!!”

  • Bill Altreuter

    On its face what appears to be going on here is an unusually vicious employment dispute– and one which has been reported on elsewhere. (See, e.g. http://www.ubspectrum.com/news/view.php/279095/Former-UB-law-professor-proceeds-with-fe). Perjury is a tough rap to sustain– and I’d like to see some reporting on the charge that’s more likely to be accurate than a story in a Kenyan newspaper about a Kenyan human rights advocate before I started using that word.

    • jamesholstun

      The story in the STAR is simply factual: yes, he has been accused of perjury. It didn’t pronounce him guilty. Is there something particularly untrustworthy about Kenyan newspapers? Am I missing something? As to more reporting, look at the UB Spectrum tomorrow and the Buffalo News this weekend, or sometime before the Crack of Doom.

      Couldn’t link to the earlier Spectrum story. Here’s what may be the same link:
      http://www.ubspectrum.com/news/view.php/271920/Law-School-Dean-Mutua-Faces-Civil-Suit

      • Use the search box on the Spectrum website and put in “Malkan”. You will find several articles about this sordid affair.

      • Bill Altreuter

        I may have been parsing the word with too fine an edge. It is one thing for a party to litigation to say that someone has lied under oath, but an accusation of perjury, a very specific criminal charge, is another thing all together. Mr. Malkan has lost at PERB, and has commenced a §1983 action in the Western District of New York in which he alleges, inter alia, that Mr. Matua has lied. Mr. Ewing, a codefendant in the federal court action, has moved to have the claim against him severed. I haven’t seen the Ewing Declaration, but as a purely tactical matter that isn’t all that unusual. I would hesitate to read too much into a procedural move like that.

        As for the Kenyan press, it is worth keeping in mind that Kenya has a long record of human rights abuses, and a press which is not wholly independent from governmental regulation. A grain of salt is called for whenever you read about litigation of any sort and from any source.

      • jamesholstun

        Indeed regarding Kenya. Also, the United States has a long record of human rights abuses, from Jeffrey Amherst’s (yes, that Amherst) smallpox blankets to Bill Clinton’s indirect germ warfare on Iraq, which killed hundreds of thousands of children. And of course, our press, too, is regulated or supinely self-regulating. Nothing special about Kenya. Suspicion all round is appropriate.

      • Jeffrey Malkan

        I think have to field this comment. It’s true that I lost at PERB. The reason I lost at PERB is that Dean Mutua lied under oath and leveraged the credibility of his office into a miscarriage of justice. First he lied that he did not know about the UUP’s involvement in my dispute with Dean Mutua over the LRW program. (The dispute was simply his refusal to meet with me and discuss his public criticisms of me, which turned out to be simply bullying and grandstanding.) Former VP for HR Scott Nostaja, who was mysteriously removed by President Tripathi within his first month in office, could have answered the question of what Dean Mutua knew and when he knew it, but Mr. Nostaja failed to show up at the hearing and SUNY declined the ALJ’s offer to schedule an additional day to bring him in.

        Then Dean Mutua — in the big lie — claimed that he was justified in firing me because the P&T Committee had never voted on a recommendation regarding my promotion. (Hence Nils Olsen was the culprit for acting “ultra vires.” ) So Dean Mutua’s success at PERB makes his crime even worse.

        Your point about the nature of perjury in civil litiagtion is well taken. The plaintiff is an interested party so such allegations are inherently dubious. That is why it has taken four years for this crime to come to light. Now that a tenured faculty member reported the crime, backed up by seven other tenured faculty members, it is a credible allegation.

        Perjury from a lawyer or a state official is a crime against the judicial process. This was a profound betrayal of the public trust and it was calculated and premeditated by the Dean of the Law School to harm a fellow attorney and a faculty colleague.

        It has been covered up with more perjury by President Tripathi. On Dec. 5, 2013, he signed a sworn declaration in federal court claiming that he knew nothing about my allegations, despite eight letters or e-mails I sent to his office and two full-length articles in the UB Spectrum accusing his top administrators of serious wrongdoing. What does his staff do with this kind of information? This is how the Mafia protected John Gotti. Is Satish Tripathi the Teflon Don? Ten months later… no action taken yet to investigate the evidence. Makau Mutua will still occupy the Dean’s Office for another ten weeks, after receiving fulsome praise from the servile Provost Zukoski. Not very credible.

        In addition Dean Mutua, to return to the villain himself, said that my personnel records could not be produced because they had “vanished into thin air.” He again blamed Nils Olsen for vandalizing the Dean’s Office personnel files to cover up his underhanded attempts to subvert the faculty by promoting “imposters” like me. I assume some of you know Nils Olsen. I don’t think he needs any character references.

        The criminal aspect of this case was preceded by breach of contract, violation of faculty due process procedures, the worst possible defamation against me (claiming that I was a “danger to other people in the building” and had threatened the LRW instructors with “physical violence”), and lying to the ABA Section on Legal Education in its April 2009 sabbatical re-accreditation about the Law School’s compliance with the standards that protect academic freedom and faculty self-governance. These lies, now documented as lies, endanger the Law School’s continued accreditation and ability to certify graduates for the bar exam.

        In addition, we mustn’t overlook the questions raised by the University Faculty Senate about the management of the UB Foundation account, which now will certainly be forensically audited. Finally, there’s the question of why law school tuition has doubled since 2009 and how the students have benefited from this expense. The law school’s facilities and curriculum look much the same to me as they did in 2009, except the institution is burrowing deeper into the basement of O’Brian Hall every year.

        So this isn’t about my personal employment problem. It is about the ability of 125-year old Buffalo Law School to continue under the stewardship of SUNY Buffalo University. The Law School is obviously lacking a Board of Trustees to whom the Dean is accountable, and the faculty has obviously been demoralized and bullied to the point where eight senior professors accepted buy-outs rather than continue to serve in a hopelessly corrupt environment.

        I don’t think I’m the only person who thinks that SUNY Law School should be a self-governing professional institution located near the new federal courthouse and an integral part of the legal community. The last thing the Law School needed was a self-styled free-lance diplomat roaming the world and meddling in the politics of foreign countries. That would be senseless even if Makau Mutua was an honest man.

        What happens to me, Makau Mutua, and Satish Tripathi is of profound interest to us, personally, but not necessarily to the community at large. The bigger question is how the legal profession is going to respond to a law school that has drifted so far off track that it is unable maintain compliance with even the most basic standards of ethics, legality, and common decency.

    • jmilles

      A motion regarding the perjury claim, posted at The Faculty Lounge blog, gives more information: http://blurblawg.typepad.com/files/memo-in-supp-of-ewings-mot-for-separate-trials.pdf

      • After reading the motion, it appears that Mutua very clearly remembers “facts” that bolster his position, yet is unaware of any “facts” that he would find inconvenient.

  • GreenAndGold

    And, still as of this minute, the Buffalo News has nothing on this. Don’t think for a second that they don’t know about it.