“It is seemingly obvious that in the coming weeks, the premier of NSW will reappoint Stuart Ayres to the NSW cabinet … that would be a terrible decision in terms of public administration in the state.”
Ayres was forced to resign over the saga but has since been cleared of any wrongdoing in a separate legal review. Premier Dominic Perrottet has said the door was not closed on Ayres returning to cabinet.
Coutts-Trotter said he had considered a review by former public service commissioner Graeme Head and decided Brown would not remain in office, in accordance with section 41 of the Government Sector Employment Act.
That section deems that the employer of a public service senior executive “may terminate the employment of the executive at any time, for any or no reason stated and without notice”.
Less than two weeks ago Coutts-Trotter told a NSW budget estimates hearing he considered Brown’s performance “unsatisfactory” and was considering terminating her under a different section of the act dealing with unsatisfactory performance of government employees.
“I’ve formed the view that her performance was unsatisfactory, so I’m considering it under section 68. That’s my preliminary view,” he told estimates on September 7.
He said his view could change in response to any submissions Brown chose to make. Removing Brown under 68 would have only secured 12 weeks a maximum payout of section of the 38 weeks, less than a 38 weeks she has instead.
A spokesperson for the Department of Premier and Cabinet said it was not “feasible” to apply section 68 to the senior office of a department secretary, of which Coutts-Trotter has requested a review.
Brown announced her departure in an earlier social media post on Monday, her final day of almost a decade working for the NSW government.
Her termination culminates in a grueling three months since former deputy premier Barilaro was announced as the US trade commissioner, triggering a parliamentary inquiry that Brown faced three times. Barilaro has withdrawn from the role, which remains unfilled.
Barilaro’s recruitment also led to government reviews, including by Head, who recommended action be taken against Brown.
Head found Brown failed to act in accordance with the government’s code of ethics and conduct after she kept information from members on the job selection panel, including her consultation with Ayres as then-trade minister.
The review also found she factored in the preference of Ayres – despite never being directed to do so. Brown maintains any breach of the code of conduct was unintentional.
Until last month she held the dual roles of Investment NSW boss and department secretary, but resigned from the former amid intense scrutiny over Barilaro’s appointment. Brown insisted the move was to focus on her more senior responsibilities as department secretary.
In a post on her LinkedIn page Brown said she was exploring new opportunities in the private sector, making a veiled reference to the turmoil of the preceding three months.
“As the CEO and Department Secretary, I have learned that leadership can, at times, be difficult,” she said in the statement.
“Courageous leadership is not always comfortable. But it is a necessary part of how the public service performs its professional role in support of responsible government.”
Chief executive officer of the Greater Cities Commission and former deputy secretary at Transport for NSW, Elizabeth Mildwater, will be the acting secretary of Department Enterprise, Investment and Trade for one month from Tuesday.
– with Sarah Keoghan