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Even in the Case of Mental Illness, Americans with Disabilities Act Likely Protects Berger

Mug shot of NHCo. Commissioner Brian Berger
NHCo. Sheriff's Office
Mug shot of NHCo. Commissioner Brian Berger

Throughout recent legal battles concerning New Hanover County Commissioner Brian Berger’s fitness for public office, mental health has been a central topic. At a news conference last week, Commission Chairman Woody White said the commission had heard nothing from Berger regarding whether he needed or had received mental health counseling. White cited Berger’s incoherent emails, conspiracy fixations and erratic behavior as grave concerns that responsible leaders could not ignore. However, even if Berger were diagnosed with a clinical psychological disorder, the Americans with Disabilities Act would likely grant him the right to remain in his position.

If White and his fellow commissioners want to avoid similar situations moving forward, they’ll have to make some policy changes. According to Dr. Richard Ogle, chair of UNCW’s psychology department, the Commission would be required to put forth guidelines outlining the absolute minimum criteria for commissioners, as well as a valid psychological assessment process to assess competency relative to that criteria.

“There are models out there; it’s not that we don’t have it anywhere. It’s just that we don’t have it in those areas that we’re starting to wonder about. Elected officials and things like that—we have to move toward that. But certainly, police officers, FBI agents, people working in the intelligence field, high-level security jobs… there are models out there for that, we would just have to adapt them.”

Dr. Ogle adds that while clinical psychologists can help determine whether a person has dangerous tendencies and appropriate contact with reality, there are no objective tests to determine one’s capacity for sound judgment.