dissenting.
I respectfully dissent.
Based upon Pueblo School District 60 v. Martinez, 749 P.2d 1005 (Colo.App.1987),' the Administrative Law Judge (AU) found that claimant was not “disqualified” from receiving benefits because of the “disciplinary” suspension. I agree.
The Charter of the City and County of Denver, C5.73-4, does provide for an indefinite suspension of a member of the classi*884fied service on the filing of a felony information against him by a district attorney. However, discharge is conditioned on conviction of the charge and, if the employee is not convicted of the felony, he is to be reinstated with full benefits. There is no evidence in the record that claimant had been convicted of the charges.
Because of the negative cast of eligibility as it relates to disciplinary suspension, there can be semantic disputation whether the word disqualified when used in context of eligibility, see § 8-74-107(1), C.R.S. (1986 Repl.Vol. 3B), is appropriate. However, it cannot be seriously disputed that based upon the record, the statute, and Martinez, supra, the AU found that claimant’s eligibility did not fail because of a disciplinary suspension.
Therefore, the sole issue before us is whether the Industrial Claim Appeals Panel committed reversible error in upholding the AU’s finding that the City failed to carry its burden of showing a disqualification under § 8-73-108(5)(e)(VII), C.R.S. (1986 Repl.Vol. 3B).
The AU found that even though the information had been filed, it did not, in and of itself, constitute proof of the commission of a felony nor the violation of a company rule. Although there was evidence that claimant, in his role as president of the local chapter of the International Brotherhood of Police Officers, had authorized the violation of rules promulgated by the Secretary of State regulating “bingo” licensees by authorizing payment to workers, it was stipulated that claimant had not “pocketed” any proceeds from the bingo events.
Based on all of the evidence, the AU applied the mandatory presumption of innocence guaranteed in all prosecutions for crimes and concluded that “claimant’s situation does not fall under any category of the statute [§ 8-73-108(5)(e)(VII) ] which would provide for a disqualification.” The Panel agreed and so do I.
Therefore, I would affirm.