A Montgomery County Council attorney said yesterday that the wording of a petition used to support a tax-cap referendum headed for the November ballot was illegal, even though the county's Board of Elections said in December that the document "appears to meet the necessary requirements."

The opinion of council attorney Michael Faden may offer the overwhelmingly Democratic council a way to deflect the cap measure, launched by Republican anti-tax activist Robin Ficker. Last summer, Ficker spent hours in shopping centers collecting 15,000 signatures for a ballot initiative that would eliminate the council's ability to override a cap on increased property tax revenue.

Ficker said that yesterday's action shows that council members sense the popularity of his proposal.

"They are coming to realize they cannot win in the court of public opinion or at the ballot box, so now they are seeking another venue, namely the courts, to try to win," he said.

The council took no action on the matter yesterday. Under state law, it has until early August to certify that a proposed charter amendment qualifies for the ballot. Or, it could ask a court to invalidate the measure.

The county charter says the council must hold property tax receipts level, with adjustments for inflation, new construction and other factors, unless seven of the nine council members agree to override the provision. In each of the past three years, with property taxes surging as a result of rising real estate values, the council has exercised the override option, which Ficker now wants to remove.

Council members -- who this year cut the property tax rate by 1 cent but nonetheless took in $37 million more in property taxes than the charter limit allows -- worry openly about the potential impact of Ficker's initiative.

"The council as a whole thinks it would be a disaster for the county," said council President Steven A. Silverman (D-At Large).

Although county leaders have voiced sympathy for those who must pay rising tax bills, they also fear what would happen if the county were deprived of the added revenue. Next year, for example, heeding the charter limit would mean forgoing $144 million in property-tax revenue, a significant chunk of the county's operating budget, which this year came to $3.3 billion.

Silverman and two other council members -- Nancy Floreen (D-At Large) and Marilyn Praisner (D-Eastern County) -- wanted to hear Faden's views privately, but a motion to close the council session failed in a 3 to 6 vote. Other council members said the matter deserved to be aired publicly.

Faden argued that Ficker's petition did not clearly specify that the proposed amendment involved removal of charter language that allows the council to override the limit. To make his point, Faden presented to the council an example of what he later called a "picture perfect" petition -- another Ficker ballot initiative, one that would limit current and future council members and the county executive to three consecutive terms of office.

Ficker conceded in an interview that the petition did not mention the removal of the override option, but he insisted that "every single word that we wanted voters to approve was right in front of them." If his initiative fails to make the 2004 ballot, he added, he would certainly try again for 2006, when voters will elect the council.

"The irony of it all is that I would put it on the ballot along with these council members," he said.