Opinion
C. A. PC-2019-7559
08-11-2020
CITY OF EAST PROVIDENCE v. STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS DIVISION OF PUBLIC UTILITIES AND CARRIERS; AND NATIONAL GRID
For Plaintiff: Dylan B. Conley, Esq. For Defendant: Adam Ramos, Esq., Christine E. Dieter, Esq.; Tiffany A. Parenteau, Esq., Christy Hetherington, Esq.
For Plaintiff: Dylan B. Conley, Esq.
For Defendant: Adam Ramos, Esq., Christine E. Dieter, Esq.; Tiffany A. Parenteau, Esq., Christy Hetherington, Esq.
DECISION
NUGENT, J.
This matter is before the Court on appeal by the City of East Providence (hereinafter the City) from a decision of the State of Rhode Island and Providence Plantations Division of Public Utilities and Carriers (hereinafter the Division), denying and dismissing the City's complaint and request for relief against Appellee (hereinafter National Grid) and ordering the City to pay an arrearage to National Grid. Jurisdiction is pursuant to G.L. 1956 § 42-35-15. For the reasons that follow, the Division's decision is affirmed in part and reversed in part.
I
Facts and Travel
On July 29, 2016, the City sent National Grid a letter stating its intent to purchase municipal lighting equipment (hereinafter streetlights) from National Grid in accordance with the Municipal Streetlight Investment Act (hereinafter the MSIA), G.L. 1956 § 39-30-3. Tr. at 11:23-12:5, Apr. 9, 2019; (Pl.'s Am. Compl. at 1.) National Grid responded with closing documents on August 11, 2016. Agreed-Upon Statement of Facts at 2. Thereafter, on November 20, 2017 and on May 30, 2018, National Grid communicated email messages to the City, both of which included revised closing documents and updated purchase prices. The City did not respond to either. (Agreed-Upon Statement of Facts at 2; Joint Ex. 5, Joint Ex. 6.) On August 15, 2018, the City sent an email to National Grid, requesting an updated purchase price. (Agreed-Upon Statement of Facts at 2; Joint Ex. 7.) Although the City Council approved the purchase of the streetlights in accordance with National Grid's closing documents on September 18, 2018 subject to its approval of a maintenance contract for those assets after transfer, the sale never closed. National Grid sent a final email communication to the City regarding a revised purchase price on November 8, 2018. Again, the City did not respond. (Agreed-Upon Statement of Facts at 2); (Joint Ex. 9.) However, the City later alleged that National Grid's numerous responses to the City's purchase requests "contained various violations of [the MSIA]." (Pl.'s Am. Compl. at 1.)
On February 1, 2019, the City filed a petition with the Division against National Grid pursuant to the MSIA. (Division Order 23619 at 1.) The City made the following four claims: (1) that National Grid failed to provide the City with a proper cost estimate of the streetlight purchase within sixty days, in violation of the timeliness provision contained in the MSIA; (2) that National Grid levied an illegal Tariff adopted by the Public Utilities Commission as S-05 in 2016; (3) that National Grid's agreement of sale and attachment agreement violated the MSIA; and (4) that National Grid's agreement of sale compelled the City to purchase streetlights on State roads in violation of the MSIA. See id. at 4.
A
Testimony Before the Division
The Division heard testimony in the matter on April 9, 2019. (Tr. at 1, Apr. 9, 2019.) The City presented no witnesses. National Grid presented two witnesses. The parties submitted an Agreed Statement of Facts.
Jacques Afonso (hereinafter Mr. Afonso) testified that he works for National Grid as a community and customer manager and is a "point of contact" with several specific municipalities, including the City. Id. at 8:19-9:22. Mr. Afonso testified that on July 29, 2016, the City notified National Grid of its intent to purchase streetlights. Id. at 11:23-12:5. Mr. Afonso testified that on August 11, 2016, National Grid sent an e-mail to the City providing the closing documents-i.e., "the purchase price, inventory, sales agreement, attachment agreement and other miscellaneous information." Id. at 13:7-17. Mr. Afonso is not tasked with determining the actual purchase price of streetlights but facilitates communications between National Grid and municipalities. Id. at 20:5-8. Mr. Afonso testified that he did not recall whether the City provided a response to National Grid. Id. at 14:3-5. However, there was further contact between the City and National Grid. Id. at 14:6-9.
Mr. Afonso testified that on September 28, 2016, representatives from the City and National Grid convened to discuss "[t]he streetlight purchase, the price, [and] the process." Id. at 14:11-24. Mr. Afonso testified that the City did not purchase the streetlights following this meeting. Id. at 15:3-5. Thereafter, Mr. Afonso testified that he responded to the City's request for an updated purchase price on the streetlights and sent revised closing documents to the City. Id. at 15:10-23. Mr. Afonso testified that the City again did not purchase the streetlights after he sent the revised closing documents. Id. at 16:22-24. Mr. Afonso further testified that he sent the City two more sets of revised closing documents containing an updated purchase for the streetlights on November 20, 2017 and on November 8, 2018. Id. at 17:1-24. Mr. Afonso testified that the City did not respond to either of the two communications. Although the City Council authorized the purchase on September 18, 2018, the City never closed on the purchase of the streetlights
National Grid also sent an email to the City on May 30, 2018, discussing revised closing documents and updated purchase prices, but this email was sent by a different employee who was covering for Mr. Afonso at that time. (Agreed-Upon Statement of Facts at 2); (Joint Ex. 6.)
Ms. Roseen, who works as a "lead analyst in the outdoor lighting and attachment group" for National Grid, id. at 26:3-9, also testified. The lighting and attachment group serves as the "manager and coordinator of all related streetlight business" for National Grid. Id. at 12-19. Ms. Roseen testified that she coordinates purchase orders and ensures certain procedures are followed. Id. at 27:4-9. Ms. Roseen testified that after a municipality requests to purchase streetlights, National Grid "extract[s] the billing inventory for that municipality." Id. at 29:2-4. The billing inventory "contains the types and quantities of the streetlights, the poles, [and] the accounts that those lights are billed to." Id. at 31:16-19. She explained that this information is then provided to National Grid's "pricing group which does that actual pricing calculation." Id. at 29:4-6. After the pricing calculation is returned to the outdoor lighting and attachment group, the closing documents along with "standard form customer guideline documents" are compiled into an e-mail "and relay[ed] . . .to the community manager for delivery to the customer." Id. at 29:6-12. Ms. Roseen testified that the closing documents contain "the pricing sheets which provides the final purchase price, the agreement of sale, the attachment agreement, the billing inventory…and some other, again, customer guidelines." Id. at 29:17-24.
Ms. Roseen noted that she is generally familiar with how National Grid calculates the purchase price. Id. at 32:16-22. Ms. Roseen testified that:
"All of the company's streetlight assets are stored in a utility accounting system…those assets are entered in with a value. When we calculate a purchase price for a streetlight asset sale, those values are extracted, what we refer to as the net book value. And because the nature of this utility accounting system was not meant to sell assets, we had to allocate those net book values across the quantifies [sic] of the entire municipality streetlight equipment base."Id. at 33:2-14. Ms. Roseen further testified that the City may be a specific customer, but other customers may lie "within the municipality boundaries that also have streetlight assets with [National Grid]." Id. at 33:15-19. Accordingly, Ms. Roseen stated, "the net book value is extracted, and then it's allocated across the entire streetlight base to create a value per luminaire, per pole. Those values are then allocated across the assets being sold to the customer and that is the final purchase price that's calculated." Id. at 33:19-34:2. Ms. Roseen testified that National Grid has been using the process described above to calculate streetlight purchase prices for customers since 2013, and that the pricing methodology that National Grid used in its proposals to the City was the same that has been used with all municipalities. Id. at 34:4-7; 36:15-22.
Specifically, Ms. Roseen testified that the agreement of sale and attachment agreement sent by National Grid to the City were the same as those sent to the twenty-three other municipalities. Id. at 30:21-31:8. However, Ms. Roseen clarified that some items contained in the closing documents sent by National Grid to the City-namely the billing inventory and the pricing sheet- were different from those used in transactions with the other twenty-three municipalities. Id. at 31:9-20; 32:4-11. Ms. Roseen explained that this is because the billing inventory and pricing sheet assessments are unique to each customer. Id. Ms. Roseen testified that although the content may differ, the format of both the billing inventory and the pricing sheet sent to the City was the same as that sent to the twenty-three other municipalities. Id. at 31:21-24; 32:12-15.
B
The Division's Decision
On June 21, 2019, the Division issued its decision denying and dismissing all four of the City's complaints and ordering the City to pay an arrearage to National Grid. (Division Order 23619 at 50.) First, the Division found that the record failed to support the City's contention that National Grid violated the sixty-day notice provision contained in § 39-30-3(a). Id. at 40. The Division noted that the City took approximately twenty-eight months to file a complaint with the Division. Id. If the City believed that National Grid violated the sixty-day notice requirement pursuant to § 39-30-3(a) by failing to transfer ownership of streetlights to the City by September 27, 2016, the Division concluded that the City would have filed a complaint immediately upon recognizing National Grid's failure of such delivery. Id. Additionally, the Division noted that National Grid complied with § 39-30-3(a) by responding to the City's demand on August 11, 2016 with closing documents. Id. at 42. Furthermore, the Division speculated that the City, after receiving National Grid's August 11, 2016 compensation calculation and purchase price, "decided on a self-help remedy and unilaterally withheld payments commensurate with what it believed to be a proper compensation calculation and tariff rate, presumably as a negotiating tactic." Id.
Second, the Division rejected the City's argument that the Division possesses the legal authority to determine that the Rate S-05 Tariff promulgated by the Public Utilities Commission (hereinafter the PUC) violated the MSIA's general requirement that a tariff be imposed during the sale of streetlights. Id. at 45. The Division found that § 39-1-3 specifically and exclusively permits the PUC-not the Division-to "hold hearings involving the rates, tariffs, tolls, and charges…of…electric distribution [and] public utilities." Id. at 44. The Division also noted that the authority conferred upon it by § 39-1-3 is a "limited authority to resolve disagreements over the proper application of, or the accuracy of calculations provided under" a tariff such as the Rate S-05 Tariff, and "not to entertain arguments to nullify the tariff and replace it with another rate calculation methodology." Id. at 45. The Division found that once the PUC determines a rate or tariff, "it is inappropriate for the Division…to challenge that decision." Id. at 44-45 (citing Providence Gas Company v. Burke, 419 A.2d 263, 270 (R.I. 1980)).
Third, the Division rejected the City's argument that the attachment agreement and agreement of sale sent by National Grid to the City violated the MSIA. Id. at 47. With regard to the attachment agreement, the Division stated that it could not reject the PUC's previous approval of the attachment agreement, which was properly "vetted and approved" by the PUC, for the same reason that the Division could not challenge the PUC's decision issuing a tariff. Id. With regard to the agreement of sale, the Division discussed that the record is devoid of "a discernable dispute particular to the agreement of sale used by National Grid." Id. The Division stated that the City may have raised a "convincing argument" regarding whether the Division has "the necessary authority to consider the City's difficulties with the agreement of sale," but ultimately found that the City "fail[ed] to articulate what, specifically, [was] the origin of the dispute over the document." Id.
Finally, the Division rejected the City's argument that National Grid, without authority, compelled the City to purchase streetlights for use on State roads, as opposed to municipal roads. Id. at 49. The Division noted that the record reflected that the City "has historically been charged for all of the streetlights located on State roads in the City." Id. The Division also noted that aside from the City's refusal to purchase streetlights from National Grid after September 27, 2016, the City has historically purchased streetlights from National Grid without issue. Id. Accordingly, the Division denied the City's complaint against National Grid and ordered the City to "pay National Grid the outstanding arrearage that has accrued since the City began withholding payment." Id. at 50.
On July 17, 2019, the City timely filed the instant appeal with the Rhode Island Superior Court pursuant to § 42-35-15(g). This Court's decision follows.
II
Standard of Review
This Court is vested with appellate jurisdiction to review final decisions issued by state administrative agencies pursuant to § 42-35-15 of the Administrative Procedures Act (the APA). See McAninch v. State of Rhode Island Department of Labor and Training, 64 A.3d 84, 87 (R.I. 2013); see also Rivera v. Employees' Retirement System of Rhode Island, 70 A.3d 905, 909 (R.I. 2013). Specifically, the standard of review to which this Court must adhere is found in § 42-35-15:
"The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
"(1) In violation of constitutional or statutory provisions;
"(2) In excess of the statutory authority of the agency;
"(3) Made upon unlawful procedure;
"(4) Affected by other error of law;
"(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
"(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."Section 42-35-15(g).
When reviewing an agency decision, this Court may not substitute its judgment for that of the agency with respect to credibility of witnesses or the weight of evidence concerning questions of fact. Center for Behavioral Health, Rhode Island, Inc. v. Barros, 710 A.2d 680, 684 (R.I. 1998); Mine Safety Appliances Co. v. Berry, 620 A.2d 1255, 1259 (R.I. 1993). This Court's review is therefore limited to '"an examination of the certified record to determine if there is any legally competent evidence therein to support the agency's decision.'" Johnston Ambulatory Surgical Associates, Ltd. v. Nolan, 755 A.2d 799, 804-05 (R.I. 2000) (quoting Barrington School Committee v. Rhode Island State Labor Relations Board, 608 A.2d 1126, 1138 (R.I. 1992)). Evidence is deemed to be substantial or competent if '"a reasonable mind might accept [it] as adequate to support a conclusion, and means an amount more than a scintilla but less than a preponderance."' Newport Shipyard, Inc. v. Rhode Island Commission for Human Rights, 484 A.2d 893, 897 (R.I. 1984) (quoting Caswell v. George Sherman Sand & Gravel Co., 424 A.2d 646, 647 (R.I. 1981)).
Finally, the Court "may reverse [the] findings [of the administrative agency] only in instances wherein the conclusions and the findings of fact are totally devoid of competent evidentiary support in the record, or from the reasonable inferences that might be drawn from such evidence." Bunch v. Board of Review, Rhode Island Department of Employment and Training, 690 A.2d 335, 337 (R.I. 1997) (citations omitted). "Questions of law, however, are not binding upon the court and may be reviewed to determine what the law is and its applicability to the facts." Narragansett Wire Co. v. Norberg, 118 R.I. 596, 607, 376 A.2d 1, 6 (1977).
III
Analysis
In its appeal before this Court, the City reiterates the four arguments made to the Division. Each argument will be discussed in turn.
A
Sixty-Day Notice Provision Pursuant to § 39-30-3(a)
First, the City argues that National Grid violated the sixty-day notice provision of the MSIA in its transaction history with the City. Specifically, the City contends that the closing documents National Grid sent on August 11, 2016 amount to the creation of a "prerequisite procedural process antithetical to the purpose of the MSIA," and that National Grid refuses to "calculate the cost of the Lighting Equipment in the same manner as prescribed by the MSIA." Essentially, the City contends that National Grid violated the sixty-day notice provision of the MSIA by requiring payment from the City prior to transferring ownership of the streetlights to the City and that National Grid stands to benefit financially from creating such a delay.
National Grid responds that the City has misread a provision of the MSIA, which requires that payment be furnished by a municipality to National Grid before streetlights are transferred to that municipality. National Grid further notes that after receiving the City's request to purchase streetlights, it responded with all of the necessary purchasing documents thirteen days later, on August 11, 2016.
The Division's denial of this portion of the City's claim was supported by the competent evidence of record. First, the Division noted that despite the fact that National Grid sent the closing documents for the purchase of the streetlights on August 11, 2016, the City declined to accept those documents. (Division Order 23619 at 42.) Additionally, the record reflects that the City did not file a complaint with the Division for approximately twenty-eight months. Id. Accordingly, this Court finds that these two facts, on which the Division relied, rebut the City's contention that National Grid's initial purchasing communications with the City were designed to and did, in fact, delay purchase of the streetlights. In fact, the ability to purchase the streetlights rested with the City, beginning on August 11, 2016, yet the City failed to complete the purchase despite the City Council authorizing the purchase on September 18, 2018. The Division had before it Mr. Afonso's testimony that following the September 28, 2016 meeting between the City and National Grid, the City did not purchase the streetlights. (Tr. at 15:3-5, Apr. 9, 2019.) Mr. Afonso further testified that he responded to the City's request for an updated purchase price on three separate occasions, each time sending revised closing documents to the City containing a new purchase price, and the City never responded, which proves that National Grid did not cause any delay that could have violated the sixty-day notice provision. Id. at 15:10-23; 16:22-17:24.
Furthermore, the MSIA states, in relevant part:
"(a) Any city or town receiving street lighting service from an electric distribution company pursuant to an electric rate tariff providing for the use by such municipality of lighting equipment owned by the electric distribution company, at its option, upon sixty (60) days notice to the electric company and to the department, and subject to the provisions of subsections (b) through (e), may . . . acquire all of the public street and area lighting equipment of the electric distribution company in the municipality, compensating the electric distribution company as necessary, in accordance with subsection (b)."Section 39-30-3(a). Subsection (b) states that "[a]ny municipality exercising the option to convert its lighting equipment pursuant to subsection (a) must compensate the electric distribution company. . . ." Section 39-30-3(b). Under the terms of the MSIA, the City did not have an unconditional right to receive the streetlights sixty days after it provided notice to National Grid without payment but was required to furnish payment to National Grid before taking possession of the streetlights. Section 39-30-3(b) (setting forth the requirement that compensation from the City to National Grid had to have occurred before the City was entitled to take possession of the streetlights). Again, the record demonstrates that the City had this opportunity available to it first on August 11, 2016 and chose not to respond to National Grid's further communications sent on November 20, 2017, on May 30, 2018, and finally on November 8, 2018, and opted not to close the sale.
With respect to the argument that any supposed delay in the purchasing of the streetlights was orchestrated in order for National Grid to recognize a financial gain, Ms. Roseen testified that National Grid has used the same process to calculate initial streetlight purchase prices for customers since 2013, and that the pricing methodology that National Grid used with the City was the same as those used with all municipalities in other transactions. (Tr. at 34:4-7; 36:15-22, Apr. 9, 2019.) Ms. Roseen also testified that the closing documents National Grid sent to the City regarding its request for streetlights were substantially similar to those sent to twenty-three other Rhode Island municipalities which purchased street lights from National Grid. Id. at 30:18-31:8. There is no evidence in the record that National Grid acted improperly in either delaying the City's purchase of the streetlights in order to realize greater financial gain, or in calculating the actual prices of the streetlights. See Johnston Ambulatory Surgical Associates, Ltd., 755 A.2d at 804-05. The purchase price decreased each time National Grid sent closing documents reflecting depreciation of the assets. Accordingly, the Division's rejection of the City's claim that National Grid violated the sixty-day notice provision of the MSIA was not in violation of statutory provisions or affected by error of law.
B
The Division's Approval of the Rate S-05 Tariff
Next, the City argues that the S-05 Tariff applied by National Grid violates the statutory provisions of the MSIA. The City in its memorandum argues that the S-05 tariff "unlawfully changes the lights the City has to acquire, delays the City's savings and expedites an increase in National Grid's charges."
Alternatively, National Grid argues that the validity or legality of the S-05 Tariff is not and cannot properly be an issue before this Court as this Court's review is limited to a review of the administrative agency's decision. Accordingly, National Grid contends that the Division properly concluded that it lacked jurisdiction to consider the City's challenge to the legality of the S-05 Tariff. National Grid claims that the PUC, not the Division, holds the exclusive authority to determine the validity or legality of its tariffs, including the S-05 Tariff.
This Court will not consider the validity or legality of the S-05 Tariff as such a consideration is proper only before the PUC, or, in the event that the PUC determines a tariff is legal, before the Supreme Court. Instead, this Court can only determine whether the Division was in violation of statutory provisions in asserting that it lacked authority to challenge the validity or legality of the S-05 Tariff approved by the PUC.
Section 39-5-1 provides the exclusive remedy for challenging a decision or order of the PUC, setting forth a procedure for petitioning the Supreme Court. In contrast, § 39-5-1 states that a person may challenge a decision or order of the administrator, i.e. the Division-not the PUC- before the Superior Court. Because the City challenges a decision of the PUC, i.e., the implementation of the S-05 Tariff, the Supreme Court is the proper venue.
The Division relied upon § 39-1-3 which states that the PUC-not the Division-has the exclusive authority to "hold . . . hearings involving the rates, tariffs, tolls, and charges . . . of . . . electric distribution [and] public utilities. . . ." See Pawtucket Power Associates Ltd. Partnership v. City of Pawtucket, 622 A.2d 452, 456 (R.I. 1993) (stating that "it is…a well-recognized doctrine of administrative law that deference will be accorded to an administrative agency when it interprets a statute whose administration and enforcement have been entrusted to the agency").
The record reflects that there were public hearings before the PUC adopted the S-05 Tariff, at which the City's interests were represented by the League of Cities and Towns, which made no objection to the S-05 Tariff. Section 39-1-3(a); (Division Order 23619 at 44.) Furthermore, the Division also relied on § 39-1-3 for the proposition that it holds only "limited authority to resolve disagreements over the proper application of, or the accuracy of calculations provided under" certain tariffs received by it from the PUC, and "not to entertain arguments to nullify the tariff and replace it with another rate calculation methodology." (Division Order 23619 at 45.) Indeed, § 39-1-3 provides that the Division oversees only the "execution of all laws relating to public utilities and carriers and all regulations and orders of the commission," and does not permit the Division to question the validity or legality of such laws, regulations, and/or orders. Section 39-1-3(b). Finally, the Division correctly relied on the law of the Supreme Court in determining that once the PUC sets a rate or tariff, the Division cannot disturb the PUC's determination. (Division Order 23619 at 44-45.) The Supreme Court has held "[o]nce the commission has made its decision, it is inappropriate for the division and its administrator to challenge that decision . . . ." Providence Gas Company, 419 A.2d at 270. Both the statutory law and the law of the Supreme Court make clear that the Division had no authority or jurisdiction to challenge the validity or legality of the S-05 Tariff, and this Court accordingly finds that the Division did not exceed its statutory authority. Consequently, this Court does not find that the record containing the Division's action is "totally devoid of competent evidentiary support in the record, or from the reasonable inferences that might be drawn from such evidence." Bunch 690 A.2d at 337.
C
National Grid's Attachment Agreement and Agreement of Sale
The City also argues that National Grid's attachment agreement and agreement of sale violated the MSIA. Specifically, the City notes in its memorandum that the attachment agreement and agreement of sale "require[] the City [to] agree to allow National Grid the right to remove the City's Lighting Equipment from National Grid's poles, without cause," and that "National Grid seeks to limit the technology that the City may employ on [sic] after purchasing streetlights."
Conversely, National Grid argues that the Division properly rejected the City's request that the attachment agreement be invalidated for lack of jurisdiction. National Grid contends that the Division was correct in applying the same deferential treatment of the PUC's decision to approve the attachment agreement as its decision to approve the S-05 Tariff. Additionally, National Grid argues in its memorandum that the City "has not offered any justification for why it should receive different purchase terms than every other municipal entity that has purchased streetlight assets under the Act," and that the City has not "identified any specific provision of the Agreement of Sale that it disputes."
Here, the Division acted within its statutory authority regarding both the attachment agreement and the agreement of sale. With regard to the attachment agreement, the Division's determination that it had no authority to reject the PUC's prior approval of the attachment agreement was not affected by error of law. The Division's finding that it lacked authority to disturb the PUC's ruling, and its decision to therefore accord deference to the PUC's determination is supported by law and will not be disturbed by this Court. See Providence Gas Company, 419 A.2d at 270 (discussing that "[o]nce the commission has made its decision, it is inappropriate for the division and its administrator to challenge that decision").
With regard to the agreement of sale, the Division found that the record before it was devoid of any particulars regarding the City's dispute over National Grid's agreement of sale. The City did not offer any evidence as to why it may have disputed the agreement of sale during the hearing before the Division on April 9, 2019. Furthermore, the Division noted that the City's papers submitted to the Division "fail[ed] to present a discernable dispute particular to the agreement of sale used by National Grid." (Division Order 23619 at 47.) Because this Court may not substitute its judgment for that of the agency with respect to the weight of evidence concerning questions of fact, this Court finds that the Division's rejecting the City's arguments regarding the agreement of sale for lack of specificity was not an abuse of discretion. See Barros, 710 A.2d at 684; Berry, 620 A.2d at 1259.
D
Requirement to Purchase Streetlights Located on State Roads
Additionally, the City argues that National Grid required the City to purchase streetlights beyond those contemplated by the statutorily defined term in the MSIA. Namely, the City disputes that it must purchase streetlights for use on State roads, as opposed to those used on municipal roads. National Grid argues that the MSIA makes no distinction between streetlights located on State roads and those located on municipal roads, and therefore, the City is required to purchase all of the streetlights in the City's inventory pursuant to the MSIA
Here, it is clear that the Division's rejecting the City's claim that it is exempt from purchasing streetlights located on State roads was not affected by error of law. The Division determined that the City "has historically been charged for all of the streetlights located on State roads in the City," which renders the City's contention that it is not obligated to purchase streetlights for use on State roads without merit. (Division Order 23619 at 49 (emphasis added).) The Division relied on the MSIA in determining that the City was under an obligation to purchase streetlights for use on State roads. Although the Division did not quote the MSIA directly, it stated in its decision that "it is clear from the plain meaning of the wording in the Act that these streetlights are properly included in the City's inventory of lighting equipment assets," in reference to streetlights to be used on State roads. Id. The portion of the MSIA to which the Division referred states that a municipality shall "acquire all of the public street and area lighting equipment of the electric distribution company in the municipality. . . ." Section 39-30-3(a)(3) (emphasis added). The Division's ruling that the MSIA requires the municipality to purchase all of the streetlights to be used within the confines of the City, including those on State roads, was not in violation of statutory provisions or affected by error of law. Section 42-35-15(g); see also Pawtucket Power Associates Ltd. Partnership, 622 A.2d at 456.
E
The Arrearage
Finally, the City argues that it is not required to pay the arrearage ordered by the Division to National Grid. The City states that there is nothing in the record to support the Division's determination that the City engaged in self-help tactics by withholding payments owed to National Grid, nor did the City raise this contention in its complaint.
National Grid argues in its memorandum that the City is required to pay the arrearage ordered by the Division to National Grid because the record does, in fact, establish that the City "placed a portion of its payment of National Grid and Direct Energy bills regarding streetlights into an escrow account." The City disagrees.
Here, the record is devoid of evidence supporting the finding that the City withheld payments or engaged in self-help tactics. The Division appeared to consider the motive of the City, suggesting that the City "withheld payments commensurate with what it believed to be a proper compensation calculation and tariff rate, presumably as a negotiating tactic." (Division Order 23619 at 42 (emphasis added).) However, there is no evidence in the record that the City withheld payment to National Grid, nor is there any evidence suggesting that even if payment was withheld, it was done so for an improper reason, such as an attempt by the City to influence negotiations in its favor. Accordingly, because this finding of fact is "totally devoid of competent evidentiary support in the record, or from the reasonable inferences that might be drawn from such evidence," this Court must reverse the Division's order that the City pay an arrearage to National Grid. Bunch, 690 A.2d at 337 (citations omitted).
IV
Conclusion
After review of the entire record, this Court hereby affirms the Division's decision denying and dismissing the City's complaint. However, finding substantial rights of the appellant have been prejudiced, this Court reverses the Division's order that the City pay an arrearage to National Grid. Counsel shall prepare the appropriate judgment for entry.