Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 3, 2026 Get Citation Alerts Download PDF Add Note

Howard Zlotkin v. Board of Trustees, Etc.

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-1560-24

• Precedential Status: Non-Precedential

• Opinion

• Authorities (4)

• Cited By (0)

• Summaries (0)

• Similar Cases (11.9K)

• PDF

Combined Opinion

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1560-24

HOWARD ZLOTKIN,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
TEACHERS' PENSION AND
ANNUITY FUND,

Respondent-Respondent.

---

Submitted January 28, 2026 – Decided March 3, 2026

Before Judges Smith and Berdote Byrne.

On appeal from the Board of Trustees of the Teachers'
Pension and Annuity Fund, Department of the
Treasury.

Howard Zlotkin, self-represented appellant.

Jennifer Davenport, Acting Attorney General, attorney
for respondent (Janet Greenberg Cohen, Assistant
Attorney General, of counsel; Payal Y. Ved, Deputy
Attorney General, on the brief).

PER CURIAM
Petitioner Howard Zlotkin appeals from the final administrative decision

of the Board of Trustees, Teachers' Pension and Annuity Fund (the Board),

which imposed a ten percent forfeiture of his monthly pension benefits

following a classroom incident involving heated remarks on political and racial

subjects. The Board's decision modified factual findings and rejected the

recommendation of the Administrative Law Judge (ALJ), who concluded a

reduced forfeiture of sixty-four days of lost service was warranted based on the

nature and circumstances of the misconduct.

After careful review, we reverse and reinstate the ALJ determination. The

Board failed to act within the statutorily mandated forty-five-day period to

modify or reject the ALJ's initial decision and did not request a timely extension,

as required by N.J.S.A. 52:14B-10(c). Therefore, the ALJ's determination must

be deemed the final administrative determination.

I.

Zlotkin was employed as a science teacher by Jersey City Public Schools

and held teaching certificates for grades K-8, biological science, and earth

science for twenty years. On April 28, 2021, Zlotkin taught a high school

"Landscape and Design" class via Zoom. During the session, he asked students

to formulate and present to him a hypothesis, which he believed would

A-1560-24
2
encourage student engagement he perceived was lacking during the COVID-19

pandemic. The students' hypothesis was that all white people are privileged.

Zlotkin reacted poorly, attempting to explain why he felt the statement was

inaccurate, hurtful, and disrespectful. For about two minutes, Zlotkin spoke to

his students heatedly about political and racial subjects, espousing his views.

The specific remarks made by Zlotkin were as follows:

Because I've been working for twenty years, and I don't
really care who you are or what color you are. I don't
care where you came from. I worked three jobs every
f–ing day of my life and you know what I have one kid,
not seven because I can't afford seven.

....

I lost a house because I was out of work, I worked two
careers. I reinvented myself. I never gave up and I
don't give up, but I hear people whining and crying
about Black Lives Matter, but George Floyd was a f–
ing criminal and he got arrested and he got killed
because he wouldn't comply, and the bottom line is we
make him a f–ing hero. He's not a hero, he's like a
criminal just like f–ing Tawana Brawley and you know
what, Tawana Brawley lied, and ruined people's lives
and you guys emulate people . . . that just are f–ing
wrong, that are criminals, and you're making them right
because they're black or because they got a bad story.
Everybody's got a bad story. Half the planet's starving
to death and they're not whining.

....

A-1560-24
3
But the ladies that run Black Lives Matter own five
houses and are multimillionaires and they don't give a
s–t. They're making money off people and we're
fighting each other. We're gonna fall apart, and I'll tell
you something right now, that's not equity. Equity is
everybody matters – not just one person, not just the
other.

....

And I'll tell you something, I ain't f–ing privileged, I
come to work. I haven't gotten paid by my black vice
principal who thinks I'm f–ing privileged too.

A student then responded to Zlotkin's comments by telling Zlotkin he was

privileged. In turn, Zlotkin loudly retorted, "F–k you," and held his middle

finger up to the camera, ending the discussion. At least one student recorded

Zlotkin's remarks and submitted the video to school administrators.

The following day Zlotkin was notified of his immediate removal from

his duties as a science teacher. He submitted a resignation letter effective May

21, 2021. The State Board of Examiners (Examiners) subsequently initiated

review proceedings and issued an order to show cause concerning the possible

revocation or suspension of Zlotkin's teaching certificates, finding material facts

in dispute and referring the matter to the Office of Administrative Law (OAL)

for a hearing as a contested case.

A-1560-24
4
An ALJ issued an initial decision granting the Examiners' motion for

summary decision, acknowledging arguments in favor of revocation, but

ultimately recognizing mitigating factors and concluding Zlotkin's conduct,

though improper, did not warrant complete revocation, but instead justified a

two-year suspension of his teaching certificates. The Examiners accepted this

recommendation on April 13, 2023, and ordered a two-year suspension of

Zlotkin's certificates.

The Board performed an analysis pursuant to N.J.S.A. 43:1-3 and Uricoli

v. Board of Trustees, Police & Firemen's Retirement System, 91 N.J. 62 (1982).

It found Zlotkin's conduct to be "grave and substantial, directly related to [his]

employment, and involved a high degree of guilt and culpability, as the

misconduct occurred during a class in front of [his] students." The Board also

found Zlotkin's "misconduct was motivated by the humiliation of [his] students."

Consequently, after addressing the eleven Uricoli factors, the Board ordered a

forfeiture of ten percent of Zlotkin's monthly pension allowance.

Zlotkin appealed and the matter was transferred to the OAL for a hearing

as a contested case. The ALJ issued an initial determination recommending a

reduced forfeiture, calculated as sixty-four days of lost service, representing the

A-1560-24
5
period from the date of the incident (April 28, 2021) to Zlotkin's retirement date

(July 1, 2021).

The Board issued its final administrative decision. The Board adopted

some factual findings from the administrative proceedings, but modified others .

The Board also rejected the ALJ's recommendation of a reduced forfeiture,

explaining forfeiture from the date of misconduct would result in a minimal

reduction and did not reflect the extent and nature of the misconduct as well as

the negative attention brought to the school district. The Board then impos ed a

ten percent forfeiture of Zlotkin's monthly pension benefit. This appeal

followed.

II.

"The standard of review of an ALJ's deemed-adopted decision is a

question of law, and therefore we owe no deference to the legal conclusions" of

the Board. In re Hendrickson, 235 N.J. 145, 157 (2018). Accordingly, we

review the matter de novo. Ibid.

An ALJ's initial determination is "merely a recommendation to the

[Board]." N.J. Election Law Enf't Comm'n v. DiVincenzo, 445 N.J. Super. 187,

193 (App. Div. 2016). In reviewing an ALJ's determination, "the agency head

may reject or modify findings of fact, conclusions of law or interpretations of

A-1560-24
6
agency policy in the decision, but shall state clearly the reasons for doing so ."

N.J.S.A. 52:14B-10(c).

However, "[u]nless the head of the agency modifies or rejects" the ALJ's

decision within forty-five days, it "shall be deemed adopted as the final decision

of the head of the agency." Ibid. (emphasis added). If the agency cannot render

a decision within forty-five days, the statute allows a "single extension of not

more than [forty-five] days" where "good cause" is shown. Ibid. A request for

such an extension "must be submitted no later than the day on which that time

period is to expire." N.J.A.C. 1:1-18.8(b). To request an extension for good

cause, the "agency head . . . [must] sign and forward a proposed order to the

Director of the [OAL,]" who, if he or she approves the request, "shall within

[ten] days of receipt of the proposed order sign the proposed order and return it

to the transmitting agency head, who shall issue the order and cause it to be

served on all parties." N.J.A.C. 1:1-18.8(e).

Our Supreme Court has explained the Legislature amended N.J.S.A.

52:14B-10(c) "to set a strict deadline for administrative agencies 'to adopt, reject

or modify' an ALJ's decision." Hendrickson, 235 N.J. at 158 (quoting N.J.S.A.

52:14B-10(c)). Before the amendment adding the deadline in 2014, the Court

held the "'deemed-approved' provision of N.J.S.A. 52:14B-10(c) should be

A-1560-24
7
invoked" when an administrative agency acted "in bad faith, or with inexcusable

negligence, or gross indifference, or simply [took] no action . . . 'to adopt, reject

or modify'" the ALJ's recommendation within the forty-five-day period. King

v. N.J. Racing Comm'n, 103 N.J. 412, 421 (1986). However, "[a]s amended, the

statute does not provide a safe harbor for an agency that is unable to act within

the prescribed period through no fault of its own." DiVincenzo, 445 N.J. Super.

at 198. Indeed, the amendment is strict: "[W]hen the agency does not act within

the forty-five-day statutory timeframe—or within the single extension period

not to exceed forty-five days—the ALJ's decision is 'deemed adopted as the final

decision of the head of the agency.'" Hendrickson, 235 N.J. at 158 (quoting

N.J.S.A. 52:14B-10(c)).

The ALJ issued her decision on September 4, 2024. Therefore, pursuant

to N.J.S.A. 52:14B-10(c), the ALJ's decision would be deemed adopted unless

the Board modified or rejected the decision by October 19, 2024, or requested

an extension of the initial forty-five-day period. Indeed, the ALJ's decision

contained the following language:

This recommended decision may be adopted, modified,
or rejected by the BOARD OF TRUSTEES OF THE
TEACHERS' PENSION AND ANNUITY FUND,
which by law is authorized to make a final decision in
this matter. If the Board of Trustees of the Teachers'
Pension and Annuity Fund does not adopt, modify, or

A-1560-24
8
reject this decision within forty-five days and unless
such time limit is otherwise extended, this
recommended decision shall become a final decision in
accordance with N.J.S.A. 52:14B-10.

The Board voted to reject the ALJ's decision at its November 14, 2024 meeting,

almost a month after the deadline had passed and it did not issue its decision

until December 6, 2024. The record does not reflect the Board requested an

extension. Therefore, the September 4, 2024 ALJ determination must be

deemed the final decision of the Board.

Reversed. The ALJ determination dated September 4, 2024, is reinstated.

A-1560-24
9